Super PACs

Richard Briffault, Columbia Law School


The most striking campaign finance development since the Supreme Court’s Citizens United decision has not been an upsurge in corporate or union spending as many commentators predicted. Instead, federal election campaigns have witnessed the emergence of a new campaign finance vehicle – the Super PAC – which relies primarily on extremely large individual contributions, not corporate or union money, but which threatens to upend the federal campaign finance regime in place since 1974.

Super PACs can accept contributions in unlimited amounts and use them to engage in unlimited independent expenditures expressly supporting or opposing candidates. Non-existent before the spring of 2010, Super PACs were significant players in a number of 2010 Congressional elections and became major factors in the 2012 Republican presidential nominating contest. In many of the Republican primaries, Super PACs outspent the candidates. Nearly all the leading Super PACs in 2011-12 were closely identified with specific presidential contenders, and they became vehicles for wealthy donors who had given the legal maximum in contributions to a candidate’s campaign to give much more to the Super PAC backing that candidate. As a result, Super PACs threaten to effectively eliminate limits on contributions to candidates.

This article examines the Super PAC phenomenon. It compares and contrasts Super PACs with other campaign finance actors. It considers the judicial and Federal Election Commission decisions that authorized their existence and operations, and the impact of Citizens United – which is not directly responsible for Super PACs – in creating an atmosphere in which lower courts concluded that donations to independent spending committees cannot be limited. The article explores the preliminary data on Super PAC fundraising and spending and the evidence that they function as virtual, but legally far less constrained, alter egos for the candidates they support. As a result, the emergence of Super PACs may very well spell the beginning of the end of our nearly four-decade-old post-Watergate campaign finance regime.