With the start of the 2016 election cycle, the news has been saturated with stories of large amounts of money being applied to political campaigns from a relatively small number of sources. One of the key conduits for this money is the “Super PAC,” a relatively new type of organization. Where did Super PACs come from, should they be limited, and how could we limit them?
Situation Before Super PACs
The Federal Election Campaign Act of 1971 (FECA), as it has been amended over the years, limits campaign contributions individuals can make to national campaigns and to political action committees (PACs). Currently, individuals may contribute up to $2700 to a candidate’s committee, $5000 to each PAC, and somewhat more to party committees. Corporations and unions may not make these contributions but each can organize PACs to which its members may contribute. Each PAC may contribute up to $5000 to each candidate’s committee.
Until 2013, an individual’s total contribution to campaigns and PACs every two years was limited to somewhat more than $120,000. The US Supreme Court struck down this limit in McCutcheon v. FEC in October of 2013. However, PACs that are affiliated with one another (established, financed, or maintained by a corporation, labor organization, or any other person or group of persons) are considered one PAC for purposes of limits applicable to PACs. So, there were practical limits to the flow of money prior to Super PACs.
Super PACs are political action committees that engage only in “independent expenditures,” which the FECA defines as expenditures expressly advocating for the election or defeat of a clearly identifiable candidate that are not made in concert with, or at the suggestion of, that candidate and certain other related people. Super PACs are attractive to donors and candidates because:
In the 2012 election cycle, Super PACs received $828 million and spent $609 million on national campaigns according to the Center for Responsive Politics viewing required public disclosures. The top donor in the 2012 election cycle, Sheldon and Miriam Adelson, contributed a total of $93.1 million of which $92.8 million was “outside money,” which includes Super PACs. It has been reported that the Koch brothers are promising to spend $889 million in the 2016 election cycle. Super PACs provide a way to pool large amounts of money to advocate for or against candidates and issues.
The Rise of Super PACs
Super PACs are not congressional creations but rather have arisen out of recent court decisions interpreting the right to free speech guaranteed by the First Amendment. Campaign expenditures are largely considered a form of speech since they seek to give a message to voters. Not all speech is protected. One cannot yell “Fire!” in a crowded theater with impunity, for example. However, governmental restrictions on speech must meet a high bar. The restrictions must further “a compelling interest” and be “narrowly tailored to achieve that interest.” Under this standard, courts have whittled away at statutes designed to limit the influence of big money donors on campaigns.
The case that has directly given rise to Super PACs is Speechnow.org v. FEC, a 2010 decision of the DC Circuit Court of Appeals. This case struck down, as a violation of the First Amendment right to free speech, the statutory limits on contributions to PACs that make only independent expenditures. Speechnow relied on a case you may have heard of, Citizens United v. FEC, a US Supreme Court decision handed down only three months prior to Speechnow. While Citizens United is known for its ruling that corporations may make independent election-related expenditures from their general treasurers, this particular holding is not all that interesting for PACs, which need not be corporations. It was the interpretation of the First Amendment in Citizens United that set the stage for the Super PACs.
The underlying question in Citizens United, like in all of these campaign finance court decisions, was what constitutes “a compelling interest” that justifies speech restrictions. Courts for the last few decades have considered an anti-corruption motive to be a compelling interest. The Supreme Court in Austin v. Michigan Chamber of Commerce, a 1989 decision, identified corruption in the form of “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” In McConnell v. FEC, a 2003 case, the Supreme Court expressed a concern about “the appearance of undue influence” created by large donations “buying access.”
The Citizens United court expressly overruled Austin and McConnell, finding that only “quid pro quo corruption” can justify restrictions on campaign spending. (“Quid pro quo” means “this for that.”) In essence, only those restrictions that prevent candidates from rewarding donors through official acts pass the First Amendment. The court rejected the premise that “the Government has an interest in equalizing the relative ability of individuals and groups to influence the outcome of elections.” The court declared, “The First Amendment’s protections do not depend on the speaker’s financial ability to engage in public discussion.”
Speechnow applied the rationale voiced in Citizens United, holding that since independent expenditures are not coordinated with campaigns, there is no reasonable risk that contributors will receive benefits directly from the candidates in exchange for the contributions. Quite simply, since Citizens United held that independent expenditures do not lead to “quid pro quo corruption,” the First Amendment does not allow Congress to limit independent expenditures by anyone, including individuals, associations, and corporations.
Effectiveness of Super PACs
Clearly donors believe that Super PACs are effective at influencing votes for candidates. Even the Adelsons, as rich as they are, would not blow nearly $100 million on an election cycle unless they believed that their money was buying results. Candidates also must believe that Super PACs can help them win elections, whether by supporting the candidates themselves or challenging their opponents. They would not spend their precious campaign time courting Super PAC donors and headlining Super PAC fundraisers. With the scientific, computer-supported election analysis that campaigns utilize these days, it is hard to believe that donors and candidates are misguided in their beliefs in Super PACs.
The result, of course, is that voters are exposed to the messages of wealthy individuals and organizations about their views of the candidates and the issues. This outside spending on messaging is increasing. Candidates are supposed to have no control over this messaging. However, Super PACs supporting a given candidate will naturally try to reinforce the candidate’s messaging rather than conflict with it. Super PACs also may have messages of their own, such as messages about opponents that are too negative for the candidates themselves to give. Most importantly, Super PACs are free to pick and choose their candidates and their issues, perhaps supporting only candidates that agree with a particular view on abortion, or perhaps supporting healthcare legislation favorable to the corporate contributors.
The Good, the Bad, and the Ugly
As the Supreme Court has made clear, we are talking about the First Amendment here. Our Bill of Rights is designed to provide enduring protection that weathers transient problems and public opinion. This protection is especially important for minority viewpoints. Abrogating these rights must be done very carefully and reluctantly. The Supreme Court is right to require such a high standard—furthering a compelling interest and narrowly tailored to achieve that interest—before our government impinges on these rights. Should individuals, no matter how wealthy, be muzzled through a spending limit? If not individuals, how about groups of individuals getting together to deliver a common message? Is the importance of the right simply to be sure all points of view are heard, or is it more than that, inuring to each of us to speak when we wish to speak?
Perhaps the more important question in this case is whether the Supreme Court is wrong to believe that, because Super PACs make only “independent expenditures,” there is no risk of corruption. Logic dictates that candidates who believe that Super PACs are effective at getting them elected will be motivated to keep the big donors who fund these Super PACs happy with their official acts. This is true even when there is no direct agreement between donors and candidates. Senators run for reelection every six years and congressmen every two years. Presidents usually aspire to a second term, and also want to support their party. While the word “corruption” is subject to definition—as the differing Supreme Court cases demonstrate—certainly a system in which our elected officials must keep happy a small minority of voters fits in some definitions.
While it is easy to point the finger at the rich and powerful, we really have only ourselves to blame. We are the ones who vote. If the messages that Super PACs give us did not influence our votes, then Super PACs would not be effective, and politicians would not pay attention to them. It is sobering to know that Super PACs are effective because we listen to them and follow them to the voting booth.
Those who believe that this is a problem that should be fixed have an uphill battle. The problem with the Supreme Court making decisions as in Citizens United is that political solutions become difficult if not impossible. Any new restrictions on campaign contributions or spending will ultimately have to be approved by the Supreme Court. Either the court will have to be convinced of a strong connection between the contributions/spending and corruption, or it will have to adopt a looser First Amendment standard that would allow the new restrictions to pass.
History has many examples of Supreme Court decisions that did not stand the test of time. One famous example is the Plessy v. Ferguson decision, supporting segregated schools, which was overruled by Brown v. Board of Education. The Supreme Court is, right now, considering whether same-sex couples have a constitutional right to marry, a possibility that the Constitution’s authors would never have considered. The passage of time brings new information and new attitudes that ultimately make their way into judicial thought.
What is clear is that the rise of the Super PAC is not over. How far it will go, and what backlash may form, is yet to be seen.
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