From a presentation by Mimi Marziani, Money in Politics After Citizens United: Troubling Trends & Possible Solutions
The creation, and subsequent rise, of so-called “Super PACs” is the most prominent post-Citizens United development. Regular PACs have been around for a long time, but could only accept contributions up to $5,000 from human beings.
Super PACs are mutant PACs that can raise, and then spend, unlimited amounts money from corporations, unions, and individuals on political advertisements, as long as they do not coordinate their spending with any candidate.
Despite popular belief, Citizens United did not create Super PACs—at least, not directly.
The Court, in holding that corporations have the same right to engage in independent spending as natural persons, naively stated that political spending can only corrupt if it is directly coordinated with a candidate’s campaign.
Afterward, the Federal Election Commission (“FEC”) and lower federal courts quickly expanded this logic. They reasoned that as long as a group is not coordinating with any candidate, there is no anti-corruption reason to impose contribution limitations on that group. Thereafter, numerous political committees declared independence from their preferred candidate, and Super PACs were born.
Contrary to the Supreme Court’s assumption, however, there is no reason to believe that independent spending benefiting a candidate is, in fact, less likely to lead to corruption than direct contributions.
After all, political candidates want to win. From the perspective of Newt Gingrich, for example, it makes little difference whether Sheldon Adelson spends millions on supportive campaign advertisements rather than donating that money directly to the campaign—Gingrich will simply consider whether the money helped his efforts. If the money was valuable to the campaign (and in Gingrich’s case, it was essential), Adelson would be treated no differently than someone who had donated millions directly to Gingrich’s campaign committee. Except that it is illegal to make million-dollar contributions directly.
To make matters worse, the definition of “coordination” under federal campaign finance law allows a considerable amount of cooperation between a candidate and his or her nominally independent supporters. (This is largely the result of the FEC’s dysfunction). Thus, for instance, members of President Barack Obama’s cabinet have appeared at fundraisers for Priorities USA Action—a Super PAC that is supporting Obama’s re-election—to help raise money for pro-Obama campaign ads, without technically violating any coordination rules. Mitt Romney’s campaign and his Super PAC, Restore Our Future, retain the same political consulting firm and have hired the same event-planning company, rented rooms in the same hotel, and depended heavily upon the same New York City fundraisers—again, all while remaining “independent” under the law.
Now, Super PACs have raised almost $160 million dollars this election cycle and have spent close to $90 million—more than six months from the general election. Unsurprisingly, wealthy interests have seized this opportunity to throw resources behind their preferred candidate. At the end of 2011, contributions from donors giving over $100,000 accounted for 85.5 percent of all Super PAC donations. At last count, about 35 corporations, unions and individuals have donated more than $1 million to their Super PACs of choice. As Professor Rick Hasen put it, “Super PACs are for the 1 percent.”