Stephen Colbert has increased the visibility of super PACs with Americans for a Better Tomorrow, Tomorrow. And if Colbert’s goal is to initiate discussion about super PAC impact, he may satisfy his goals. But if Colbert wants to reform this new vehicle for political spending, the legal system is an unlikely path to success. Why? The Federal Election Campaign Act (“FECA”) affords no private right of action. Criminal sanctions are in the Department of Justice’s domain, and the FEC is responsible for initiating civil actions. Criminal prosecutions for transgressing FECA are rare and so are civil proceedings. As a result, the super PACs that promise to define the 2012 election cycle will likely endure. How was such a radical shift in campaign dynamics effected? What are its impacts? And just how implausible is a legal challenge to the new regime?

The Emergence of Super PACs

Political Action Committees (PACs) are electioneering vehicles. There are different types of PACs, and this article focuses on those created to independently advocate the election or defeat of a candidate, or passage or defeat of a ballot issue. Until recently, such PACs were subject to contribution constraints. That is, they were only permitted to raise money in discrete $5,000 increments. No more. A series of legal decisions has transformed independent expenditure PACs into super PACs, entities permitted to solicit unlimited sums. The question, then, is how we arrived at a place where organizations can aggregate immense capital by fundraising from a small class of wealth contributors.

Predictably, the legal road to super PACs originates with the Court’s 2010 decision in Citizens United v. FEC. The road is short—it terminates just two months later at the D.C. Circuit decision in Speechnow v. FEC. In Citizens United, the Court departed from norms of judicial restraint by transforming an as applied challenge into a facial one. Rather than issuing a narrow ruling, the Citizens United court extrapolated its views on the First Amendment rights of non-profit corporations to for-profit corporations and unions. In doing so, the Court struck down a portion of FECA §441, the portion that categorically barred corporate and union entities from pursuing direct advocacy in our elections. Going forward, corporations and unions were permitted to execute independent expenditures, which FECA defines as:

Any expenditure “expressly advocating the election or defeat of a clearly identified candidate” that is “not made in concert or cooperation with or at the request or suggestion of [a] candidate, the candidate’s authorized political committee, or their agents, or a political party committee or its agents.” 2 U.S.C. § 431(17)

The Citizens United decision, though striking, did not make PACs super. Corporations and unions are distinct from PACs, which already enjoyed the opportunity to pursue independent expenditures. The decision, however, did undermine the legal principles used to support contribution limits.

Contribution limits were established in FECA and upheld in the Court’s seminal campaign finance case, Buckley v. Valeo. In Buckley, the Court affirmed the constitutionality of contribution limits against strict scrutiny. It did so because of the government’s compelling interest in avoiding corruption, or the appearance thereof. Later, in Austin v. Michigan Chamber of Commerce, the Court would layer support for regulation by affirming another compelling interest—limiting the distortionary impact that independent political entities often have on political dialogue.

 Citizens United initiated the process of deconstructing these government interests. As the Speechnow Court noted, Justice Kennedy rejected the anti-distortion interest’s continued vitality in Citizens United. Having dispatched with one of the legal pillars used to support government regulation of campaign finances, Justice Kennedy moved to the corruption interest. There, the Court held that because independent expenditures were, by definition, independent, no corrupting influence could attach to their activity. It was that language that the Speechnow Court seized to invalidate contribution constraints on independent expenditure committees. Writing for the Speechnow majority, Judge Sentelle said, “In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption.” As a result, contribution limits fell, and PACs were permitted to begin raising unlimited sums from individual donors.

The Impact of Super PACs

 Every Presidential contender is backed by a super PAC. President Obama has Priorities USA, Mitt Romney has Restore Our Future, and Rick Perry has—among others—Make Us Great Again. Michelle Bachman, Ron Paul, and John Huntsman are all supported by super PACs; and these fundraising vehicles are emerging at the Congressional level too, in defense of officeholders like Orrin Hatch. Perhaps candidate super PACs are valuable, insofar as they lend security: When facing votes that are important to interests with own super PACs—interests capable of raising unlimited funds to undermine a reelection bid—an official’s knowledge that entities with similar resources will mobilize support may help that official make a principled decision. Still, this benefit lends all the comfort of a nuclear arms race.

Enabling super PACs left lawmakers more hostage to private interests. It also reintroduced the appearance of corruption, and the threat of actual corruption. This is so because our coordination rules are functionally irrelevant. Again, they only prohibit independent entities from acting  “in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, or their agents, or a political party committee or its agents.” Absent explicit communication, cooperation has been difficult to establish. To the extent that staffers have, without consequence, migrated from official campaigns to super PACs, the coordination guidelines create an illusory boundary between official and independent electioneering entities. As Paul Blumenthal has noted, defections of this sort have occurred across the Presidential field. Former White House staffer and candidate Obama advisor Bill Burton heads a super PAC supporting the President. Former Romney campaign aide Steve Roche’s move to Restore our Future has also been well chronicled. The super PACs supporting candidates Perry and Bachman employ former staffers.

Though these circumstances raise suspicion, the FEC is unlikely to investigate without more. As a result, the contribution constraints erected by Congress and affirmed in Buckley have little effect. Large donors can make their $2500 (per cycle) contributions to a preferred candidate, then send $1,000,000 to a super PAC that supports that same candidate. The ability to raise money in large increments may create the appearance that a few wealthy donors have effectively captured candidates. Worse yet, the necessity of securing large contributions may actually ensure that candidates pursue donor interests once in office.

The Legal Status of Super PACs

 Though the Supreme Court has not spoken on the contribution limits invalidated in Speechnow, the Court’s silence is no victory for super PAC opponents. The silence is attributable to the FEC, which not only decided to forego review on Speechnow, but also authored an advisory opinion extending the decision’s reasoning. Absent DOJ action, the FEC’s position precludes other circuits from assessing Speechnow’s logic. As a result, those who fear super PACs are left with two options: pressuring President Obama to nominate reform minded commissioners to the FEC, or seeking redress in Congress.

 

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