Super PACs

Written by Remington Johnson
CMC Law Group

As a new attorney with Camacho Mendoza Coulter Law Group, allow me to introduce myself.   I am Remington Jiro Johnson, a graduate from George Washington University Law School.   From a very early age I have been involved in politics.   I volunteered for several city council and state legislative races in Salt Lake City, Utah, and interned at the Utah State Legislature.  I moved to Washington D.C. for law school and to try my hand at getting involved in national politics.   The all-important Citizens United decision was handed down by the Supreme Court right around the time I was interviewing for a position as a legal clerk with the Federal Election Commission.  After working at the FEC, I decided to expand my horizons by focusing on all manner of political law on local, state, and national levels.   All of this is to say that I love politics and I love the law that undergirds politics.  I approach current political issues from a political perspective and also from a legal perspective.  I intend to write this blog focusing on various political issues, and discussing my thoughts about the legal questions that are packaged with the political issues in the article.  This first article is simply a primer on super PACs; a little light on the law and designed to give an aerial view of the distinctions between super PACs and traditional PACs, and drawbacks to using a super PAC.

Super PACs.   The term is ominous just in its own right.  This year’s primary election cycle has been dominated by discussion of various super PACs that have infused large amounts of money into the process.  In some instances, super PACs have buoyed a candidate beyond national vote projections, adding needed life to a candidate’s campaign.   Today, I want to discuss what exactly makes a PAC super and what the potential ramifications of candidate reliance on super PACs are.

A political action committee, shortened to the term PAC, is a committee that has been made by other members of Congress (leadership PAC), state and local party organizations, by unions and corporations (separate segregated funds) and from individuals who do not fit in the first two categories (nonconnected PAC).  PACs are generally designed to deliver a political message on behalf of the PAC.  A PAC that intends to give money to federal candidates, or to provide assistance to federal candidates, is regulated by the FEC.  The regulations prevent any individual or entity from donating more than $5,000 per year to a PAC.  Additionally, PACs are limited in how much money they can give directly to a candidate; this year’s cap is $2,500 per election.   PACs are also subject to various reporting requirements by the FEC.  

A super PAC is significantly different from a traditional PAC.   A super PAC, correctly titled an independent expenditure only committee, is a PAC that desires to spend money on a federal election, but not to provide any contributions to a federal candidate.   Due to the logic of the Citizens United decision, various appellate court cases, and ongoing regulation changes, super PACs have no limits on how much the committee can receive from individuals.   This means that one individual can provide all the funding for the super PAC, without having to solicit outside contributions to sustain the PAC.  The significant drawback is that the super PAC is prevented from making direct contributions to a candidate, and from coordinating its spending with a candidate.   These two drawbacks carry with it significant political ramifications. 

The two major setbacks for super PACs create serious advocacy problems.  Because super PACs cannot give their money to a federal candidate, nor can they talk to the candidate about how to spend money, super PACs are left to their own judgment to decide how to use their money.   With the freedom to spend, the super PAC also has the ability to humiliate.  If a super PAC propounds an advertisement that is not something the candidate supports, or makes an advertisement that is not aligned with the candidate’s messaging, the candidate may be stuck with what the super PAC said, but worse, has little recourse for correcting a super PAC’s statements.   For example, when former governor Mitt Romney took former speaker of the house Newt Gingrich to task at the Fox News Republican Presidential Debate on January 16, Romney called into question false advertisements made by a super PAC that supports Gingrich by calling the ad the “biggest hoax since bigfoot”.   As Romney also rightly stated, if Gingrich were to talk with the super PAC’s sponsors about the advertisement, the conversation would likely violate FEC regulations.

Another problem exists where the electorate at large has a problem disentangling the message of a super PAC donor, with the official statements of a candidate’s campaign.  A prime example of this problem occurred when super PAC donor, and supporter of former senator Rick Santorum, Foster Friess went on MSNBC and told the nation that a cheap method of birth control was for women to put a Bayer Aspirin between their knees and squeeze.   Santorum was left with the unenviable position of acknowledging that Friess is one of the few reasons that Santorum is still in the race, while also having to disavow Friess’ comments to the media.  The problem was that Santorum had to spend a large amount of campaign time focusing on damage control from Friess’ comments, and separating Friess from the campaign, rather than focusing on his own campaign issues and talking points.

It is clear that super PACs have made major gains in our electoral system.  However, as this primary season has shown, super PACs are a double edged sword.  On one hand, a super PAC can get unlimited contributions to spend as independent expenditures in a federal election.  While on the other hand, the inability to coordinate and discuss with a candidate how those funds will be spent carries with it significant problems.   Because it looks like super PACs will continue to have a serious effect on our political system for the 2012 election, it is important that candidates and the electorate understand a super PACs role as separate from the actual candidate.