In Citizens United v. F.E.C. (2010) the U.S. Supreme Court held that federal law could not prohibit corporations and labor unions from contributing private funds to political campaigns. On March 26, 2010, the Circuit Court of Appeals for the District of Columbia, in the case Speechnow.org v. F.E.C., applied the Citizens United decision in holding that federal law could not limit either individual or corporate contributions to independent political advocacy groups. These two cases have provided the legal ground from which the super PAC phenomenon has grown and thrived, adding a controversial new method of working around older restrictions previously imposed against the influence of the corporate sector on presidential elections.
By the Campaign of 2012, these unlimited individual and corporate donations to independent advocacy groups assumed a different character. In 2010, such donations were centered primarily on broad-based conservative or liberal advocacy groups, such as the Chamber of Commerce. These groups promoted a range of candidates and policy issues at election time and were often formulated as 501(c) groups, which were not required to disclose their donors. By 2012, these ostensibly independent groups were more likely to be organized as 527 groups, and unlike earlier independent advocacy groups, they were increasingly dedicated to the election of a single political candidate, blurring the line between the candidate’s own campaign organization and that of the outside group. Such groups were often staffed by individuals who had previously held paid jobs with the candidate and who retained personal relationships with a candidate’s official campaign organization. While federal election law still prohibits coordination between a candidate’s campaign and the activities of outside groups, candidates routinely ignore this distinction, making appearances at super PAC fund-raising events to promote their campaign and then ducking out the door minutes before the request for donations is made. Political analysts believe that the rise of the super PAC will effectively dismantle most federal campaign finance restrictions on political candidates as super PACs become a little-regulated back door through which affluent benefactors can skirt the few remaining limits on campaign donor activity.
In a notable moment of political satire, comedian Stephen Colbert formed his own super PAC in 2011 to raise and spend funds on activities related to the 2012 presidential election. While many observers dismissed Colbert’s antics as a publicity stunt, he was in fact engaged in a serious critique of the role of money in contemporary campaigning. The Federal Election Commission eventually voted to approve Colbert’s PAC, “Americans for a Better Tomorrow, Tomorrow,” enabling Colbert to run ads in the Iowa Republican straw poll that implicitly mocked the process. Fellow comedian Jon Stewart took over stewardship of Colbert’s super PAC for a time during the 2012 campaign so that Colbert could pursue a write-in campaign for president during the primary season; Colbert’s candidacy was, of course, not serious, but his attempt to demonstrate the permissible level of coordination between his campaign and the super PAC was both serious and effective.
The limits of candidate coordination were further tested in the Campaign of 2016, most brazenly by GOP hopeful Jeb Bush. Federal election law prohibits candidates for office from coordinating with outside organizations, including super PACs. Bush sought to delay his “official” declaration of candidacy so that he could be actively involved in the organization of his Right to Rise super PAC (which shares a name with his leadership committee, as well as an election lawyer). Bush raised funds for his super PAC, hired staff, and mapped out a campaign strategy, all while claiming he was not actually running for president. Yet Bush was simultaneously making appearances at campaign events in his role as a presidential candidate and, indeed, telling the crowds gathered at such events that he was in fact running for president. Other Democratic and Republican hopefuls engaged in similar types of pretexts, albeit not on the same scale or for the same duration. Presidential candidates who already occupy a federal office (in the form of the presidency, vice presidency, House of Representatives, or Senate) may not engage in this charade; they are not permitted to associate with a super PAC prior to an official declaration of candidacy.
Democratic candidate Hillary Clinton also challenged the degree to which a candidate’s campaign could coordinate with a super PAC in 2016. Her campaign created a super PAC called Correct the Record to disseminate opposition research and to form a rapid response team to handle negative attacks on her by other candidates. Correct the Record was used as a coordinated super PAC—because the group planned to have an online presence only, the campaign believed it had found a loophole in existing campaign finance law that it could exploit. However, the loophole the Clinton campaign sought to exploit was predicated on the assumption that staff members would be volunteers, probably not the case for Correct the Record. And it is questionable whether the online exemption was ever meant to give candidates the ability to accept potentially multimillion-dollar donations from a single donor for activities directly controlled by the candidate’s campaign merely because those activities would be occurring online.
While candidates have generally viewed the rise of super PACs as an opportunity to collect large checks from affluent donors, it’s not clear that relying on super PACs is always in a candidate’s best interests. In 2012, Republican Mitt Romney collected far more donations from super PACs than did Democrat Barack Obama; however, Obama collected significantly more contributions from individual donors than did Romney. Because super PACs tend to be media-focused, much of Romney’s funds went to purchase ads, rather than for activities such as voter mobilization. Ads aren’t particularly effective at mobilizing the recalcitrant, and voters don’t remember their content for long enough for them to have much long-term persuasive appeal. Moreover, super PACs pay a substantially higher rate for political ads purchased than do candidates’ campaigns. Thus, relying too much on super PACs and too little on individual donors leads to wasteful, inefficient spending. The process of raising donations, particularly a sizable amount of small-dollar donations, is itself a grassroots mobilization tool for candidates. Getting voters to contribute even three dollars to a candidate causes them to have made an investment in that candidate, and to have a greater stake in the outcome of an election. When candidates don’t have to ask voters for a donation, they also don’t have to ask them for their vote.
In 2016, the earliest exits from the presidential context again demonstrated the pitfalls inherent in relying on super PACs at the expense of individual donations directly to the candidates’ campaigns. Republicans Rick Perry and Scott Walker had pursued wealthy donors and raised sizable sums for their super PACs, but they had not spent much time or energy on their campaign organizations. As a consequence, they found themselves unable to pay staff, pay for travel, pay the bills that maintaining the campaign offices required, and pay for important things like filing fees—despite their super PACs having plenty of money in the bank.
See also Campaign Finance Reform; 527 Group; Independent Advocacy Groups; Negative Campaigning
Carr, David. “Comic’s PAC Is More Than a Gag.” New York Times, August 21, 2011.
Confessore, Nicholas. “Lines Blur Between Candidates and PACs with Unlimited Cash.” New York Times, August 27, 2011.
Gold, Matea. “Why Super PACs Have Moved From Sideshow to Center Stage for Presidential Hopefuls.” Washington Post, March 12, 2015.