Super (Loud) PACs and Soft-spoken Issue Advocates

2/7/2012

Outside groups are spending nearly 1,300 percent more on broadcast advertising for the 2012 election than they did in 2008, according to an analysis released on Jan. 30. This is the clearest demonstration yet that Citizens United v. Federal Election Commission has fundamentally rewritten the rules for political spending.

The Jan. 31 disclosure reports filed by independent expenditure-only political action committees – typically referred to as “super PACs” – contained few surprises: super PACs have been raising, and spending, dizzying amounts of money in an attempt to influence the 2012 elections. In fact, these more than 300 "independent" (that is, "not coordinated" with a candidate or political party) groups have accounted for more than 40 percent of all the broadcast ads aired during the Republican presidential primaries, as compared to only three percent of the 2008 ads.

While candidates are vying to attract the support of a broad swath of voters, the super PACs endorsing them are funded almost entirely by very few, very wealthy donors. For example, more than 80 percent of the $17.9 million dollars collected by the super PAC supporting (but not connected to or coordinated with) Mitt Romney's campaign came via six-figure contributions. Five other super PACs supporting Newt Gingrich, Ron Paul, Rick Santorum, Rick Perry, and Jon Huntsman showed a similar pattern. Winning Our Future, a pro-Gingrich super PAC, received $10 million from just one couple.

While super PACs must remain independent from candidates and political parties, new federal election rules have allowed many of them to coordinate with traditional political action committees (so long as the two keep separate bank accounts). So far, corporations and labor unions cannot manage these hybrid PACs; however, a case now pending before the Federal Election Commission (FEC) could change that by late winter. Hybrids retain the ability to make independent expenditures out of their super PAC account and campaign contributions out of their traditional PAC account. Dan Backer, the attorney handing the cases, told Politico that hybrid PACs are "the best demonstration yet of flexibility and power and the ability get results for your dollar."

Though the FEC is making it easier for corporations and wealthy individuals to "speak" by pouring cash into the political process, the rules for some nonprofit advocacy groups are not moving as quickly. The penalties for violating the restrictions on nonprofit organizations' interaction with political campaigns can include excise taxes or even revocation of nonprofit status, but issue advocates often don't know whether or not they are engaging in a risky activity: the determination of what speech is permitted hinges on a vague determination of all the "facts and circumstances" surrounding the comments.

Writing for the majority in Citizens United, U.S. Supreme Court Justice Anthony Kennedy opined that the First Amendment "prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." It is difficult to reconcile the ongoing loosening of the restrictions on corporations' political spending with the continued restriction on issue advocates' political speech.