Super-PACs And Elections: Separating Myth From Reality

Originally published in Bloomberg Law Reports, February 24, 2012

So far, 2012 is on track to be remembered as the Year of the "Super-PAC". President Obama and his Republican challengers each are supported by at least one Super-PAC, and the groups are proliferating among U.S. Senators and Congressmen.1 More importantly, for as many dollars as Super-PACs have spent in this election cycle, it seems that commentators have used an equivalent number of words to denounce them. By most published accounts, the Super-PAC is an abomination created by the Supreme Court's Citizens United2 decision and set loose to terrorize our democracy. In urging Democrats to form Super-PACs supporting President Obama's re-election, his campaign even analogized them to nuclear weapons, noting that to refrain from participation would be tantamount to "unilateral disarmament."3

Free to raise and spend unlimited sums of money on certain types of political advertising, the narrative goes, Super-PACs threaten to place elections up for sale through anonymous corporate donors.4

Given this melodramatic backdrop, it may come as a surprise that, in fact, Super-PACs have legal underpinnings dating back more than 35 years and are subject to strict public reporting and disclosure requirements. Conceptually, they are neither brand-new nor especially secretive. Although the impact of Super-PACs on elections surely merits debate, the hysteria accompanying them is rooted in three perennial myths—not reality. This article seeks to debunk these myths and help facilitate a more accurate assessment of Super-PACs and their implications for future elections.

Super-PACs Differ from Traditional PACs

Before addressing the myths surrounding Super-PACs, a brief description of political action committees ("PACs") is in order. As discussed in this article, several recent court decisions established that the First Amendment of the U.S. Constitution protects the right of individuals, corporations, and unions to spend their resources on independent political speech—not coordinated with candidates or political parties— advocating the election or defeat of specifically identified candidates for office. In response to these decisions, the Federal Election Commission ("FEC") issued several Advisory Opinions and amended its regulations to expressly permit the establishment and operation of political committees that only make independent expenditures—so-called Super-PACs. Accordingly, a Super-PAC is a PAC that makes no contributions to candidates or political party committees (such as the RNC and the DNC), or to other PACs that contribute to candidates or political party committees. Further, there is no dollar limit on the amount of money a Super-PAC can raise or spend on its independent expenditures. Traditional PACs, in contrast, are limited to raising $5,000 per donor per year, but they in turn may make contributions directly to candidates, political party committees, and other PACs. Super-PACs may not.

Myth #1: Citizens United Was a Radical Decision That Created Super-PACs

Many pundits and politicians deem it obligatory to condemn Citizens United whenever discussing Super-PACs, but in fact the origins of Super-PACs pre-date Citizens United by over 35 years.5 In 1976, the Supreme Court decided the case of Buckley v. Valeo, which upheld the First Amendment right of individuals to make unlimited "independent expenditures" supporting the election or defeat of candidates for federal office.6 In contrast, the Court left in place limits on contributions to political candidates and campaigns, on the rationale that they amounted to only a "marginal restriction upon the contributor's ability to engage in free communication"—in part because independent expenditures were not restricted.7 This dichotomy was the fundamental basis for the infamous "Swift Boat" ad campaign against Democratic presidential candidate John Kerry in 2004, which was a series of independent expenditures paid for by...