Document Type

Article

Publication Date

2012

Abstract

The most striking campaign finance development since the Supreme Court's decision in Citizens United v. FEC in January 2010 has not been an upsurge in corporate and union spending, as might have been expected from a decision invalidating the decades-old laws barring such expenditures. Instead, federal election campaigns have been marked by the emergence of an entirely new campaign vehicle, which uses – but is not primarily dependent on – corporate or union funds, and which threatens to upend the federal campaign regulatory regime in place since 1974.

The 2010 election cycle witnessed the birth of the "Super PAC" – a political action committee legally entitled to raise donations in unlimited amounts. Nonexistent and probably illegal before the spring of 2010, Super PACs spent an estimated $65 million on independent expenditures in 2010, and were significant players in more than a dozen Senate and House races. By early 2012, Super PACs were already major participants in the 2011-2012 election cycle, significantly outspending the candidates in the early Republican presidential nominating contests. Some Super PACs had spent millions of dollars on Senate general election contests that were more than ten months away. Although some Super PAC funds come from corporations and unions, the vast majority have been provided by wealthy individuals who, well before Citizens United, were permitted to spend unlimited sums independently, but were subject to a federal statutory limit of $5000 on the amounts they could give to the federal PACs that expressly support or oppose federal candidates. Citizens United did not address the statutory limits on individual donations to PACs. The Court's overruling of Austin v. Michigan Chamber of Commerce and the pertinent part of McConnell v. Federal FEC focused on the constitutional status of corporate campaign participation and the protection of independent spending, not on the rules governing contributions to political committees. The authorization of Super PACs followed directly from lower court decisions, including two that predated Citizens United and advisory opinions of the Federal Election Commission (FEC). But Citizens United – particularly the Supreme Court's flat assertion that independent expenditures, whatever their actual effect on the political process, raise no danger of corruption or the appearance of corruption within the meaning of Buckley v. Valeo – provided crucial doctrinal support for the legal actions that launched Super PACs and enabled them to flourish. The rise of Super PACs indicates that the real impact of Citizens United may be the re-validation of the unlimited use of private wealth in elections, not just spending by corporations and unions.

This Article considers the emergence of Super PACs and their implications for the future of American campaign finance law. Part I explains what a Super PAC is and how it differs from other campaign finance vehicles. Part II analyzes the law of Super PACs, including the doctrinal tension out of which they emerged and the court and agency decisions authorizing their existence and operations. Part III examines the place of Super PACs in the campaign finance system, particularly their role in the 2010 congressional elections and their potential impact on the 2012 races based on fundraising and spending as of early 2012. In their brief life span, Super PACs have already begun to evolve from general ideological or partisan committees to vehicles for advancing or opposing the fortunes of specific candidates. This threatens to obliterate the significance of the limits on contributions to candidates that have been a centerpiece of federal campaign finance regulation since the post- Watergate reforms enacted in 1974. Part IV concludes by considering the implications of Super PACs for the future of American campaign finance law.

Disciplines

Communications Law | Law | Law and Politics

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