The emergence of super PACs enables electioneers to aggregate lots of capital from few donors. Some worry that the capital raised will reintroduce the corruption concerns that animate campaign finance reform. In response to that worry, proponents of super PACs often point to disclosure. They note that super PACs must disclose their donors, so ensuring that the public has enough information to evaluate a super PAC’s message.
Reliance on disclosure makes sense. Though the Supreme Court may not have envisioned super PACs when it decided Citizens United, it did speak to disclosure’s prophylactic potential. It was with that potential in mind that the Court settled the case, striking campaign finance reforms while voting 8-1 to uphold a robust disclosure regime. Justice Kennedy wrote:
“[D]isclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. The transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
The Court continued, reassuring potential critics that where disclosure occurs, “Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits . . . .” Likewise, disclosure allows citizens to “. . . see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”
Because super PACs are bound by all this disclosure, the risk that they will corrupt candidates and officeholders is diminished. To what extent remains a curious question. The question has received increased scrutiny in recent days, after being addressed by comedian Stephen Colbert. As Colbert notes, Super PACs are permitted to accept contributions from 501(c)(4)s. 501(c)(4)s are tax-exempt organizations incorporated to pursue social welfare. As it turns out, the organizations are permitted to participate in campaigns, but not bound to disclose their donors. As a result, Colbert and others have asserted that individuals or entities that wish to remain anonymous will donate to 501(c)(4)s that support their preferred super PAC. Voters, then, will lose valuable information about which individuals and which corporate entities lay behind particular messages.
This position has elicited criticism, most prominently from Brad Smith at the Center for Responsive Politics. Smith asserts that when money travels to a super PAC through a 501(c)(4), the information needed to maintain systemic integrity is still available. Smith notes that when a 501(c)(4) incorporates, it must identify the individual responsible for formation and the individual who possesses ongoing control. Being able to identify a 501(c)(4)’s management, however, is distinct from being able to identify its donors. I know that Colbert controls the 501(c)(4) entitled “anonymous shell corporation.” I won’t know the identity of anyone or any entity that contributes to it.
Earlier in his criticism, however, Smith raises an important point—that disclosure may chill speakers who want to articulate a message that is controversial enough to elicit backlash. The Supreme Court addressed this point in Buckley v. Valeo. The Court said that organizations might be exempt from disclosure requirements where they can present evidence that supporters or members had been and would be harassed. To support its proposition, the Court cited two cases in which disclosure would have subjected individuals to bodily harm, NAACP v. Alabama and Brown v. Socialist Workers. Going forward, courts could seize on the language in Buckley to ensure that disclosure does not subject anyone to physical harm.
Corporations have another concern: Political speech may alienate customers and reduce profitability. This has already occurred in the post-Citizens United world, most notably when consumers boycotted Target. Consequently, the anonymity that 501(c)(4)s provide is an attractive alternative to direct donations. Though attractive to corporations, the alternative’s availability presents risks; chiefly, that the corruption concerns that animate robust disclosure will be realized. Because super PACs can elicit unlimited contributions from 501(c)(4)s, and because 501(c)(4)s can communicate their donor list to the super PACs directly, that concern is real. The corruption risk could be addressed by compelling 501(c)(4)s to disclose, but the FEC has—for the time being—foreclosed that option. In 2007, the Commission announced that corporations and unions need only disclose contributions received “specifically for the purpose” of funding electioneering communications. As a result, where a 501(c)(4) does not earmark for an electioneering communication the money that it gives to a super PAC, there is no disclosure requirement. While reformers could pursue rulemaking with other agencies–as when a group of prominent law professors petitioned the SEC for a rulemaking that would require publicly traded corporations to disclose–no action on 501(c)(4)s is likely before the 2012 election cycle. Barring exceptional circumstances, where super PACs get their money seems likely to remain a mystery as the those entities shape decisions in this critical election cycle.