THE HISTORY, CURRENT ACTIVITY, AND POTENTIAL OF SUPER PACS
Table of Contents
- History of the Super PAC
- Citizens United v. FEC
- SpeechNow v. FEC
- Definition & Function
- Major Super PACs
- Impact of Super PACs on Elections
- Conclusion: Do Super PACs Matter?
Super PACs were established through a series of laws and litigations, each one changing the political landscape of elections. Reviewing history from 1944 till present day, we can see how Super PACs were established, with legislation laying groundwork, and litigation legalizing the Super Political Action Committees.(Table of Contents)
History of the Super PAC
The first PAC was created in 1944 by the Congress of Industrial Organizations, which raised funds on behalf of President Roosevelt. PACs, or Political Action Committees, are organized for the purpose of fundraising and spending money for the election of candidates. Most PACs represent ideological, business, or union (labor) interests. PACs became a vitally important part of election campaigns, helping raise the needed funds. However. concerns about corruption led to Congress passing the Federal Election Campaign Act of 1971 and its amendment in 1974. The law was established to reduce the influence of money on campaign elections by setting monetary limits on the amount a particular corporation, union, or individual could donate to a candidate. However, PACs were able to survive these limitations by soliciting for smaller donations from a wider array of people, proving to be a substantial fundraising mechanism for campaigns.
Following the 1971 and 1974 reform acts, PACs proliferated despite individuals' decreased donation limits. The number of PACs rose from about 600 in the early 1970's to more than 4,000 by 2010. During this time, the typical cost associated with running election campaigns increased, driving the proliferation of PACs. While most PACs have historically been connected to corporation or labor unions, in the beginning of the 21st century, politicians themselves began to set up their own Leadership PACs where generally they, to promote support for their own aspirations to leadership positions in Congress, promote the campaigns of other politicians, generally new challengers or threatened incumbents.
The history of the PACs followed a path that led to the development of the legal concept of the Super PAC. Super PACs were established in 2010 when Federal Election Commission restrictions were modified as a consequence of the Citizens United v. Federal Election Commission (FEC) decision and the subsequent district court decision of SpeechNow.org v. FEC. These cases removed previous FEC limits, allowing unions and corporations to make unlimited independent expenditures from their general treasuries. Non-connected PACs, which are independent of corporations, unions, and political parties, were also set free to make independent expenditures to support a particular ideology or issue.
Super PACs do not contribute directly to candidates or parties; rather, they make independent expenditures most often in close or otherwise important federal races by running their own ads, sending mail, or communicating in other ways with messages that most often advocate the specific election or defeat of a particular candidate. There are few restrictions on the source of funds that may be used for these independent expenditures and what few exist continue to be contested. However, Super PACs must file regular financial reports with the FEC, which include information on sources of funds, about their donors, and all of their expenditures. A Super PAC must have a bank account and all funds must enter into and payments must be made from that bank account such that there is an auditable record of all monies in and out of the committee.(Table of Contents)
Citizens United v. FEC
Citizens United sought an injunction against the Federal Election Commission to prevent the application of the Bipartisan Campaign Reform Act (BCRA) to the film "Hillary: The Movie"—which expressed sharp opinions about whether Senator Hillary Clinton would make a good president (Watch Trailer). The BCRA attempts to regulate big money campaign contributions by applying a number of restrictions to electioneering communications. Section 203 prevents corporations or labor unions from funding communications from their general treasuries, while Section 201 and 311 require the disclosure of donors and a disclaimer when the communication is not authorized by the candidate it intends to support.
Citizens United argued first that Section 203 facially violated the First Amendment when applied to Hillary: The Movie and its related advertisements and second that Section 201 and 203 were also unconstitutional as applied to the circumstances.
The United States District Court denied the injunction, based on the previous ruling of McConnell v. FEC, sending the case to the United States Supreme Court (USSC). These are the four main questions posed to the Supreme Court and how the Supreme Court ruled on each question:
- Did the ruling in McConnell resolve all constitutional as-applied challenges to BCRA when it upheld the disclosure requirements of the statute as constitutional? Ruled: No
- Do the BCRA's disclosure requirements impose an unconstitutional burden? Ruled: No
- If a communication lacks a clear plea vote (magic words), is it subject to regulation under BCRA? Ruled: Yes
- Should a feature length documentary about a candidate for political office be treated like an advertisement under McConnell, and subject to regulation under the BCRA? Rules: Yes
The USSC ruled January 21, 2010 that under the First Amendment, corporate funding of independent political broadcasts in candidate elections cannot be limited. The majority maintained that political speech is indispensable to a democracy, and this is no less true, even if the speech comes from a corporation. Additionally, the majority ruled that disclosure requirements are constitutional because they justify a governmental interest in providing the electorate with information.
The Supreme Court, in reaching its decision in Citizens United v. Federal Election Commission,
"unleashed a flood of unlimited contributions into federal elections through Super PACs and other independent spending entities."
The Citizens United decision explicitly holds that corporations can make independent expenditures in federal elections and can donate unlimited amounts to third party groups (such as Super PACs).(Table of Contents)
SpeechNow.org v. FEC
SpeechNow was a "nonprofit, unincorporated association organized under section 527 of the Internal Revenue Code (a Super PAC). The organization was formed by individuals who sought to pool their resources to make independent expenditures expressly advocating the election or defeat of federal candidates"(SpeechNow.org v. FEC, FEC Case Summary). SpeechNow, claims The Center for Media and Democracy (CMD), is:
"a front group founded by Club for Growth Executive Director David Keating. SpeechNow presents itself as a concerned group of average Americans, but is actually a front group for extreme anti-tax right wingers." (CMD website, 2014)"
SpeechNow filed a complaint in April 2008 in US District Court challenging the constitutionality of the Federal Election Campaign Act provisions governing political committees' contribution limits, disclosure, and registration. SpeechNow.org argued that the Act was unconstitutional because it restricted their associated guaranteed rights to free speech under the First Amendment. By requiring the registration of political committees and limiting the amount individuals could donate to their committees, the FEC, it was argued, restricted their constitutional right of Freedom of Speech.
The District Court refused to apply strict scrutiny (burden on Government) to the decisions of the case and held that sufficiently important government interests support limits on contributions to political committees, including groups like SpeechNow. The court argued, "Contributions to SpeechNow are not, through their donations engaging in direct speech. SpeechNow, as a legally separate organization, is speaking as their proxy"—meaning that restricting donations does not restrict Freedom of Speech. Additionally, the Court explained that the $5,000 limit on contributions to political committees "promotes the important government interest underlying the Act's disclaimer requirements"—which without these disclaimer requirements, would allow wealthy donors to hide behind political committees.
The District Court decision was appealed. On March 26, 2010, the DC Circuit Court of Appeals in its decision regarding SpeechNow.org v. FEC ruled in favor of SpeechNow, saying that contributions limits of 2 U.S.C. § 441a are unconstitutional as applied. The Court held that it was unconstitutional to limit the amount an individual could contribute to a third party (previously $5,000). When the government attempts to regulate financing political campaigns and express advocacy through contribution limits, the government must have "countervailing" interest that outweighs the limit's burden on the exercise of freedom of speech. Also, regarding the Citizens United ruling, in which the Supreme Court held that the government has no anti-corruption interest in limiting independent expenditures, the appeals court ruled:
"contributions to groups that make only independent expenditures cannot corrupt or create the appearance of corruption," such that contribution limits to SpeechNow violate the First Amendment (SpeechNow.org v. FEC, FEC Case Summary).
As for disclosure and reporting requirements, the appeals court held that both requirements do impose a burden on First Amendment rights, but they do not impose a ceiling on campaign related activities nor do they prohibit anyone from speaking. Additionally, disclosure and reporting requirements are sufficiently important governmental interests to justify the additional burden.
The decision in favor of SpeechNow was based on the Citizens United decision. In SpeechNow, Chief Judge David Sentelle wrote:
"Thereafter, the Supreme Court decided Citizens United v. FEC… which resolves this appeal. In accordance with that decision, we hold that contribution limits of 2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3) are unconstitutional as applied to individuals' contributions to SpeechNow" (SpeechNow.org v. FEC, FEC Case Summary).
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Definition and Function
Following the decisions in Citizens United v. FEC (January 21, 2010) and SpeechNow.org v. FEC (March 26, 2010), corporations, unions, and individuals started setting up "Super PACs." Super PACs, which are independent expenditure committees, may advocate the election or defeat of a candidate. An example would be "Restore our Future," which is a conservative Super PAC well-known for going negative first against Romney's opponents in the Republican Primaries and later targeting President Obama. These unique "political action committees," can accept unlimited contributions from corporations, unions, and individuals in order to fulfill their purpose. The only stipulation is that Super PACs cannot coordinate with candidates or parties; rather they must act independently. Along with this, the FEC requires them to disclose their source of money. However, those who would create Super PACs found a loophole in the system.
501(c)4 non-charitable, not-for-profit corporations—the numeric designation is simply the Section (number) of the Internal Revenue Service's Tax Code that applies—are not required to report the names of their donors. In the past, these corporations were primarily trade and home owner associations and other non-charitable issue advocacy nonprofit corporations. As a result of these legal developments, corporations, unions, and individuals began setting up quasi-related 501(c)4s to coordinate with their SuperPACs' efforts, redirecting donors shy of FEC reporting requirements toward their shadowy 501(c)4 counterparts. That is, the same people running a Super PAC might also set up and run a 501(c)4 not-for-profit corporation with the same mission but with separate financial books and legal existences. In some cases, they might also start up a separate charitable not for profit, a 501(c)3, that also can come into play in campaign finance, only in a more limited way. The separate books and organizational legal papers and the few rules that apply are mere legal technicalities, formalities having no meaningful consequence in the practical world--that is, it just becomes a legal game or ploy accomplishing no meaningful separation. If they have all three types: Super PAC, 501(c)3, and 501(c)4, then the same people—perhaps also representing a parent for-profit corporation—can hold essentially the same positions in all three not-for-profit organizations. The organizations can merely have three distinct checkbooks kept in the same desk drawer along with their distinct accounting books. And, as far as their meetings go, they can meet in the same place at the same time for all three organizations, holding all their required corporate or other meetings sequentially one after another—at least that's how it would appear on paper for legal purposes. Consequently, the rules amount to a minor inconvenience with the exception of the reporting requirements and any limitations on fundraising, the latter having been for the most part eliminated by the Court decisions discussed above.
What limitations on fundraising remain, some Super PACs have largely ignored, thumbing their nose at the FEC. Romney's Restore Our Future/campaign was the first (only instance as of February 2014) to ignore the long-time ban on receiving funds from federal contractors, a provision which was put in place during 1976 due to corrupt contract practices that plagued the federal government. Restore Our Future openly solicited about $890,000 from at least five such federal contractors. About all that remains that tends to be honored and enforced is the ban on contributions from "foreign nationals," persons not citizens of the United States and foreign corporations.
These developments encouraged more money to flow into the electoral process than ever before, also raising the demands to raise more money to meet the accomplishments of political competitors. Since corporations do not like disclosing themselves in support of or against a certain candidate, many prefer to donate to 501(c)4 corporations. These shadow organizations of Super PACs became extremely popular amongst big business and some wealthy donors.
The 2012 elections provided evidence that Super PACs are not only raising and spending lots of money but also are proliferating in number. The increase in the number of Super PACs increases competition between Super PACs for the attention of an extremely small short of wealthy donors. Super PACs want to get their opinions heard and to influence political outcomes. Thus, Super PACs develop an asymmetric divide between the back office vying for dollars from a few wealthy donors and the front office attempting to influence the voting population--and that logically would have to be in ways that satisfy the donors. Without first receiving donations in the back office, the front office is toothless and has little means of influence. Consequently, the inherent structure of Super PACs is to manipulate downhill, most often in 30 seconds or less.
Campaigns have tacitly relied upon the funds of Super PACs during recent elections. The expenditures that Super PACs bring in support of one or more candidates or a party of choice could in theory tip an election. However, due to legal restrictions still in place, Super PACs must rely on indirect communications with candidates that they support. But given that a Super PAC is essentially a checkbook regulated by the FEC, the interconnections are obvious when one follows the money. The relationships map a regulated flow of money into the same goals of campaigns but the regulations handily also now provide the candidates with a ready tact of denial, which encourages dishonest campaigning by independent expenditure committees. Just read any Super PAC disclaimer (required by the FEC to be published on or said with all solicitations—our example is published in the footer of this page and, as a minimum, on the footer of every page of this Super PAC website) and you will note among other required statements that the activities of Super PACs are "not authorized by any candidate or candidate's committee."
On the flip side of that, candidates can easily say that they obviously are not responsible for the behavior of Super PACs that just so happen to support their cause because, legally, they cannot communicate with one another. In practice, to easily circumvent this supposed obstacle barring communication, they merely hire the same intermediary to talk through to one another indirectly. The intermediary is usually a political consulting or media firm--in some cases apparently also owned by persons running the Super PAC in question. Please note, that they would have hired the same firm or consultant for other reasons so this obstacle is vacuous.(Table of Contents)
Major Super PACs
The amount of money that a Super PAC raises is commonly taken as the pivotal factor that determines whether a Super PAC is in the political spotlight influencing political outcomes or if it falls dim amongst the crowded field of Independent Expenditure Committees (Super PACs). With that in mind, Figure 1 lists the top five 2012 election Super PACs. The top two were pro-Romney, partly accounting for a nearly two-to-one GOP advantage in outside spending as seen in Figure 2.
In more detail, the top 3 Super PACs of the 2012 election were: Restore Our Future at the top of the list, followed by American Crossroads, and then Priorities USA Action. Restore Our Future is the largest and most well-funded Super PAC of the 2012 Election. It raised approximately $131.7 million over the election cycle, according to reports filed with the Federal Election Commission. This achievement was a direct result of having the support of the top three Super PAC contributors in addition to access to a network of other wealthy individuals and partnerships.
The nation's three top Super PAC donors, Sheldon Adelson, Harold Simmons, and Bob Perry, all have one thing in common besides having more discretionary money to spend than they know what to do with: they are all strong conservatives. Sheldon Adelson, CEO of the Las Vegas Sands Corp., contributed $37.5 million during the 2012 election cycle to a number of conservative SuperPACs. The largest donation from Adelson was $10 million to the pro-Romney Restore Our Future Super PAC in June, 2012. Harold Simmons, a CEO of Dallas-based holding company Contran Corporation, followed suit contributing $23.5 million to a menu of Super PACs. He gave his largest donation of $13 million to another pro-Romney Super PAC entitled American Crossroads. Finally, Bob Perry, a Houston-based homebuilder and president of Perry Homes (deceased April 13, 2013), donated in similar fashion to a range of Super PACs: $8 million to Restore Our Future and $8.5 million to American Crossroads. Perry is best known for funding an earlier 527 political committee, Swift Boat Veterans for Truth (aka Swift Vets and POWs for Truth. This Super PAC officially disbanded May, 2008 but is still actively seeking donations to maintain their website), which carried out an aggressive and effective media onslaught sabotaging John Kerry's bid for President in 2004.
Donors, like Super PACs, rely on money to do their talking for them. Today, it is not uncommon for the wealthiest "1%" to support Republican candidates in grandiose ways; they do this because Republicans tend to agree that the government should stay out of business in general and, by implication, theirs in particular. These billionaire donors want to make as much money as possible without the regulations of the government getting in their way. Again, candidates rely on donors' contributions and donors rely on candidates to make decisions keeping the donors objectives in mind. The Super PAC and its relation to these donors all hinges on the importance of money recognized as more than a new proxy for speech.
With the largest amount of expenditures, Restore Our Future Super PAC seemingly has the largest opportunity to get their point across. Restore Our Future's point was, of course, to get Mitt Romney elected. An example of the shear strength that this Super PAC held can be seen through its impact at the Iowa caucuses, when Romney's seat as the leader of the pack was challenged. However, to Romney's rescue came the Restore Our Future Super PAC. The Huffington Post said it best:
"coming to Romney's aid was a Super PAC constructed as an independent arsenal to dispose of his opponents, Restore Our Future, unleashed a withering barrage of attack ads destroying Gingrich's credibility" ("Super PACs, Outside Money Influenced, But Didn't Buy The 2012 Election, 2012).
Restore Our Future is a conservative, pro-Romney, Super PAC co-founded by Carl Forti and Larry McCarthy, both of whom have a history with Romney's past endeavors. Carl Forti was not only Romney's political director in 2008, but also an advisor to American Crossroads Super PAC and its related 501(c)4: Crossroads GPS. In addition, Forti co-founded another faction entitled the Blackrock Group, a strategic communications and public relations firm. Larry McCarthy was a member of Romney's media team in 2008. McCarthy is also President of McCarthy Hennings Media, Inc. Two other critical members of Restore Our Future were also connected to Romney's 2008-election: Charles Spies, the Treasurer of the Super PAC and past Romney campaign Chief Financial Officer and Counsel in 2008, and Steve Roche, current fundraiser (2012) for Restore Our Future. Roche also was the former top fundraiser for Romney in 2008. The Wall Street Journal also reported that Roche's firm received about $3 million dollars as fundraising fees for doing so, a little more than a five percent commission (Romney PAC Fundraiser's Fee: $3 Million, Mullins and Maremont, Wall Street Journal. May 22, 2013). The New Yorker calls Larry McCarthy an "Attack Dog" (Feb, 13, 2012) partly for his having been the creator of the infamous Willie Horton ad, largely credited with the 1988 Presidential Election defeat of Gov. Michael Dukakis by George H. W. Bush. Just as Steve Roche personally benefited by receiving millions in commissions from his support of Romney, Romney's 2012 campaign also paid out about fifteen million dollars for advertisements produced by Larry McCarthy's media firm. (So how is it that McCarthy and Romney were not talking in a legally responsible and official manner despite the prohibition on communications between Super PACs and candidates they support?)
The second highest profile Super PAC in the country is the aforementioned conservative political action committee, American Crossroads. This 527 Super PAC created a spin-off 501(c)4 corporation called Crossroads Grassroots Policy Strategies (Crossroads GPS) in June of 2010. This sister non-profit corporation has the freedom to solicit unlimited amounts of money from donors, without the constraint of disclosing their names. However, both American Crossroads and Crossroads GPS do have to abide by one restriction: they are prohibited from coordinating their advertisement expenditures with candidates or national party committees in general.
American Crossroads is heavily entwined into the Republican Party; the driving force behind the formation of this Super PAC came from two GOP heavy hitters. Ed Gillespie, former Republican National Committee Chair and former advisor to President George W. Bush, partnered with Karl Rove, former political strategist to George W. Bush. While Gillespie and Rove are the founders, Steven Law was President and CEO during 2012 and remains so of both American Crossroads Super PAC and Crossroads GPS, the quasi-affiliated 501(c)4. A lesser known person, Caleb Crosby, merely a paid employee of both, serves as Treasurer for both organizations. Crosby splits a 40-hour work week evenly between the two and earns $56,000 a year from each (Nov. 2013). That seems a paltry salary for what we suppose is an accountant serving in like capacity to a Chief Financial Officer of a company having similar revenues. What is interesting here is that, while you can make any other arrangements you wish, the FEC only cares to know who is the Treasurer, the one authorized to keep the bank account and sign the checks. American Crossroads seems structured more like a corporation than a typical political committee and Steven Law apparently evades the major responsibilities—technically he is not on the hook with the FEC for the organization's activities nor is he responsible for filing reports or other communications with the FEC, at least as far as the FEC registration is concerned. Regardless, the International Business Times reports that:
"Crossroads GPS President Steven Law took home $528,000 for his 48-hour work week with the company, as well as an additional $99,562 from related groups, presumably from serving as president and CEO of American Crossroads." ( Who Are The Mystery Mega Donors Funding Karl Rove With Eight-Figure Donations? Crossroads GPS Won't Tell, Nov 19, 2013.)
In the past, Steven Law served as the Deputy Secretary of the Labor Department during the Bush era, as the Executive Director of the National Republican Senatorial Committee in 1998 and 2000, and did a stint as the Chief Counsel of the U.S. Chamber of Commerce.
American Crossroads raised $80,091,020, a little less than Restore Our Future. Mr. Law campaigns to get 'fellow Americans' involved with Crossroads GPS and attuned to its goals. In the mission statement of the Crossroads website, he asks:
"if you believe America is at a Crossroads, and our future is still worth saving for our kids, please join us, because America's history isn't finished being written" (About-Who We Are, American Crossroads website", 2012)
Steven Law grants interviews to journalists which, of course, contributes free airtime for similar messages damning the current situation of our country under the leadership of Democrats The Democrats, Law signals, have placed us on the brink. We just can't find any record of in-kind donations on file with the FEC for these freebie opportunities to grandstand on air. Of course, we can't conduct a full search because there are no records for Crossroads GPS on file with the FEC. The point Law repeats is that the Democrats are to be disparaged rather than debated. Law claims that his Super PAC's and 501(c)4's mission to get America back where it needs to be by spending other people's money or, as he would put it:
"We raise money from a whole lot of volunteer donors all across the country. And we spend it to promote people who have the courage, integrity and good ideas to get this country back on track" (American Crossroads website, Feb 2014)."Crossroads GPS is dedicated to holding Washington's feet to the fire on the practical issues that will actually improve our country and our lives. We have discovered that most people support action on these issues, so we call it the New Majority Agenda, and you can read all about it here. We use every available means – from TV ads to constituent letters – to help educate busy people and urge our leaders to take action on this commonsense punch-list for positive change" (Crossroads GPS website, Feb 2014). (And we might add to pay himself better than half a million dollars a year out their pockets at the same time.)
Restore Our Future and American Crossroads were often confused for one another during 2012, or used interchangeably, as many Americans thought that they are one and the same. Not only are they both conservative and pro-Romney Super PACs led by powerful Republican professionals, but they were also two of the most funded and thus powerful Super PACs in the 2012 election. However, to know the true mission of each Super PAC is to know what makes Restore Our Future and American Crossroads so distinctive. Both Super PACs salivate at the chance to change the current political situation; however, they each cite a different principle to elicit such change. Restore Our Future's only ambition was to get Mitt Romney elected by any and every way possible, while American Crossroads wishes to facilitate change by more practical means and by supporting all conservative, modification-hungry political candidates. Both Super PACs have raised astronomical amounts and have accomplished parts of their goals with Romney winning the Republican nomination. They also claim the success of seven candidates which they supported in local elections. Yet neither accomplished their ultimate goal, demolishing the current Democratic regime.
The Super Political Action Committee Priorities USA Action is the Super PAC generally associated with President Obama. This Super PAC's goal, as stated on its website, is to safeguard the re-election of President Obama while addressing and clearing the air of recent disingenuous attacks on President Obama and other progressive leaders.
Priorities USA Action brought in $63,897,639, less than half of the amount of contributions that the Restore Our Future achieved. Like Restore Our Future, Priorities USA Action was founded by past or present aides to their candidate. Priorities USA Action was co-founded by Bill Burton, the Obama Campaign Press Secretary later named as White House Deputy Press Secretary, and Sean Sweeny, former Chief of Staff to Rahm Emanuel, President Obama's Chief of Staff 2008-10. In addition, Priorities USA Action's President is Harold Ickes, former Chief of Staff to President Bill Clinton. Ickes served in senior positions in both Bill and Hillary Clinton's presidential campaigns.
Unlike Republican Super PACs whose donor lists consist of billionaire business tycoons and others who distinguish themselves as the "1%", Priorities USA Action's top donors consists of labor unions, trial lawyers, and celebrities. Particularly, DreamWorks CEO Jeffrey Katzenburg, comedian Bill Maher, Chicago media mogul Fred Eychaner, and award-winning director Steven Spielberg, are amongst Priorities USA Action's top donors.
According to Priorities USA Action's website (2012), their goals as a Super PAC do not rest at simply re-electing President Obama. Additionally, they believe in advocating and supporting candidates who support economic policies that generate American jobs and invest in the economy, who believe in the importance of equal opportunity for access to health care and investing in our education, and who promote national security policies that keep our country safe. While Priorities USA Action is known as Obama's Super PAC, it is also supports Democratic candidates across the country.
Priorities USA Action mitigates, it would seem, the spending power of the two conservative pro-Romney Super PACs. Like American Crossroads, Priorities USA Action chooses to elicit change based on supporting all capable candidates—the more positions your party holds the more its ability to bring about change.(Table of Contents)
Impact of Super PACs on elections
The multi-billion-dollar question this election cycle bandied about was whether or not Super PACs were influential in regards to the election outcome. What impact did they have? While one would expect Romney to win based only on the amount of money raised and spent in his favor, we have one example now that suggests the the most money raised and spent will not necessarily win the election for you. Elections cannot be so easily bought? Many newspapers, such as the Wall Street Journal and the Washington Post, criticized the GOP, Romney, and supporting Super PACs for spending outrageous amounts of money that won them neither the Presidential election nor more seats in the Senate.
As of December 6, 2012, according to OpenSecrets.org, 1,261 political committees had registered with the FEC as Super PACs and a total of $745,746,950 had been raised by them. They reported receipts of $678,726,087 and a total independent expenditures of $644,109,379 during the 2012 cycle. Independent expenditures usually are ads or flyers that express advocacy for either the election of or defeat of a candidate and are recognized by the key words and phrases they use such as, "vote for," "defeat," and "support." The top 25 Super PACs spent 87.2 percent of the expenditures and the top 10 Super PACs spent 73.6 percent. Figure 3 illustrates how this money was directed, the bulk being directed toward against President Obama.
A very interesting trend was the prominence of negative campaign ads by Super PACs during the 2012 election. Figure 4 shows that more than two-thirds of funds were spent on negative advertisements targeting the opponent as opposed to positive advertisements supporting their candidate—by both Democrat and Republican Super PACs. Because of the FEC regulation barring communications between candidates and supporting Super PACs, the candidates have a ready means of denial for negative spin and accusations of slander that is received disfavorably or criticized. Consequently, the legal structure encourages Super PACs to 'do the dirty' with the tactic approval if not outright but covert encouragement of the candidates and their campaigns.
Governor Romney spent much of his money campaigning during the primary elections after surges by Santorum, Gingrich, and Perry threatened to derail Romney's bid. Restore Our Future pumped money into attacking Romney's GOP primary opponents such as this example attacking Gingrich for his purported support of amnesty for illegal immigrants and association with both the Fanny Mae mortgage crisis and Nancy Pelosi. Gingrich threatened to sue for defamation and mailed a cease and desist letter when this aired in Georgia. Once Romney won the primary nomination, he claimed to not have enough money left to respond to all of the attack ads that President Obama's Campaign Committee and supporters were airing against him--an example is "Understands." Although there can be a loss of high moral ground with negative campaign strategies, they often have proven to be more effective then positive ads because people seem to recall them better. Ultimately, Romney's campaign committee and supporting Super PACs organized themselves poorly and were heatedly criticized for discouraging moderate voters by promoting extremist radical right-wing causes as the more important points on the agenda.
The money Restore Our Future spent on negative anti-Obama television advertisements such as "Another Month" left state election ads lost in the shadows, causing more people to believe Romney felt that the small town constituency was less important to his campaign's success. Romney's actions were taken to speak louder then his words—which may be deserved for arguing "corporations are people" and otherwise favoring the idea that money is speech in courtrooms. Romney lost whatever touch he did have with grassroots America, including the idea of building up his party's role in states' government.
Romney had more money supporting him. These funds were instrumental in bowling over competitors by going negative, flooding the media, while his targeted competitors lacked such resources. However, the money behind Romney failed to win him any ground in the general election against the incumbent President Obama. Some remark that if Romney had adapted some of Obama's grassroots principles and instead of running over the working class, had reached out to them—less to the big multi-million-dollar donors—the outcome of this past election might have been different. But then, back to reality, the idea of Romney winning over the grassroots is counter-intuitive to the reasons Restore Our Future and American Crossroad's donors had for supporting him. So we can brush aside such unrealistic surmises and fancies.(Table of Contents)
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As stated above, Super PACs evolved out of "freedom of speech" arguments based on the assertion that both spending money on media having a political message and contributing to organizations that do this are forms of speech protected by the First Amendment to the U.S. Constitution. It has been argued that Super PACs have no ability to corrupt the process of democratic elections insofar as they only make independent expenditures, which means that they cannot communicate with the benefited party, candidate, and candidate's campaign staff. Some people also argue that the Super PAC sponsored advertisements give rise to more speech, which is generally is accepted as "a good thing". Plus, supporters insist that people ultimately form their own opinions based on a candidate's record. Should some candidates be affected by ads, it would simply be because they deserved it.
The problem with the idea that people vote according to a candidate's record is that the record is not all that clear and subject to manipulation. Consequently, saying that candidates who are negatively impacted by attack ads deserved it (on account of their record) is often going to be nothing more than another instance of the old-fashioned habit of blaming the victim.
Many individuals who oppose Super PACs insist that they do corrupt the electoral process. No limitations on monetary contributions results in more money flowing into the election process. There is a "Darwinism" risk where attitudes attune to "might makes right."
Further, the activities of Super PACs are "allowing candidates who otherwise would not still be in the race, to be in the race," says Melanie Sloan, Executive Director of Citizens for Responsibility and Ethics in Washington. Thus, money might hide the incompetency and the actual unpopularity of a candidate's views and projects. Finally, since Super PACs are banned from coordinating with candidates, a risk of counter-productivity might exist. This was most evident in the recent 2012 election. Super PACs in support of Obama put out ads against Romney that were considered by many to be distasteful and, if genuinely done independently, were counter-productive for the Obama campaign.
Conclusion: Do Super PACs Matter?
It turns out the question about the effectiveness of Super PACs is a straw man question. It is easy to obfuscate the issue given there are so many factors that can influence an election outcome. Money can be spent wisely or foolishly and on campaign strategies that backfire. That is, money is not the only issue but it is a big deal, nonetheless.
After all, we now have the neologism "swift boating" to describe any unfair or untrue political attack as an inheritance from Swiftboat Veterans for Truth's smear campaign of John Kerry, to benefit G. W. Bush. G.W. Bush won, largely aided by this defamation of Kerry. The outcome of that was the investment of America and huge sums of money into dubious war schemes that helped tank the economy and did irreparable harm to the international reputation of the United States.
Does money matter? Do Super PACs influence elections? Of course they do. No, you cannot simply buy an election outright; but, you can buy yourself a lot more and more effective speech compared to regular folks and to the artisan newspaper editor with a press in the backroom—the legendary emblem of free speech (press) in this country.
Super PACs did determine where a lot of money was directed during the 2012 election. Super PACs also assumed the task of negative campaigning and took this to new technological heights of prominence. They assumed the associated blames for any criticism deflecting that criticism away from their candidates, holding their candidates harmless.
Tracking the flow of money--what can be seen--already raises the specter of cronyism just within the operations of campaigns and suggests a return to old corruption practices regarding federal contracting procedures. Romney Super PACs took in nearly a million dollars from federal contractors and his fundraisers paid themselves extremely well.
Both campaigns accused the other of "swiftboating" (pointing to ads mostly produced by their contenders' Super PACs rather than their opponents' campaigns themselves), while at the same time, they both dismissed these charges when leveled at themselves, claiming they had no responsibility for what Super PACs do that are unauthorized by them and with which they cannot legally communicate.
Saying Super PACs don't matter because they didn't make a difference in this election, citing that Romney who raised the most cash lost the election, is simplistic, if not silly. It ignores the larger issue regarding what money has done to the overall quality of the electoral process. Obviously too, how the money is spent matters as least as much as the quantity raised. In the end, if we could take these campaigns seriously ourselves for just a moment, we might say that the "Vulture Capitalist," who was bad for the middle class, lost out to a "non-citizen" "European Socialist." And, for those Super PACs that raised a lot of money, the persons who raised those funds rewarded themselves well. A few seem to have paved the roads by doing so for their own political careers. So the experts at going negative are now making plans to run for office themselves, a new money politics. The end result of these changes in campaign finance limitations has been the increased flow and structuring power of money that affects the culture by promoting negative politics and unleashing dishonesty and visciousness, thereby corrupting ways to win.
Super PACs have added an entirely new dynamic to the election process. No longer can candidates just appeal to their constituents; they must first and foremost appeal to the extremely wealthy. The most effective use of funds seems to be going negative. We are undoubtedly in a new era of politics that must first oblige campaign finance needs in an aristocratic (non-democratic) arena. It has left us with a literal environment where a citizen has a right to free speech that is of no longer of value due to the hyper-inflation of a new money politics where protected speech is now identified with money.
How will things go in the future? Well, we are waiting on the Supreme Court decision on:
McCutcheon v. Federal Election Commission.
This case, soon to be decided by the US Supreme Court, will have to be another paper and another heading in this site's menu. But the gist of McCutcheon v. FEC is that conservatives are still hell bent on removing all restrictions concerning campaign finance:
(Table of Contents)
"The court is expected to rule any day now on McCutcheon v. FEC, another potentially landmark constitutional challenge that could shake up campaign financing as dramatically as Citizens United did in 2010. While no one can predict how the court will rule, oral arguments in October suggest that conservatives in the majority remain as eager as ever to dismantle money limits.
At issue in McCutcheon is the constitutionality of existing overall limits on how much a contributor may give to candidates and political parties in a single election cycle. Alabama businessman Shaun McCutcheon, who brought the challenge, argues that the $123,200 cap on total contributions per cycle violates his First Amendment rights" (Carney, Eliza Newlin, Will McCutcheon Replay Citizens United?|Rules of the Game, Beltway Insiders).