What is a SuperPAC?

A SuperPAC is an independent political action committee that is able to accept donations of any size, but is not allowed to directly communicate with parties and political candidates.

What’s the problem with SuperPACs?

SuperPACs are often created for the goal of supporting a candidate, therefore when a donor contributes to a SuperPAC they are effectively bypassing regulations to limit the amount of money that can influence a prospective elected official.

Why do we still have them?

While the Supreme Court has never ruled that SuperPACs are required by the First Amendment, lower courts have assumed they are. This is incorrect. For the same reasons that Buckley v. Valeo permitted the regulation of contributions to candidates (the risk of quid-pro-quo corruption), contributions to SuperPACs should also be capable of regulation.

What is the rationale for the formation of Citizens to End SuperPACs?

Because we want to end SuperPACS – and we believe the United States Supreme Court will agree! As Professor Larry Lessig explains:

“Because campaigns in America are privately funded it has obviously created the potential for real problems.

A normal contribution from an ordinary person to a politician is just the expression of good luck - a hope that the candidate does well.

But sometimes the contributor wants something more. Sometimes they want something in exchange for their contribution and sometimes when that happens the politician obliges. This is illegal. It’s a corrupt contribution and it's corrupt because it involves a quid pro quo corruption - A this-for-that corruption. That sort of an exchange is a crime. And the US Supreme Court has allowed the regulation of campaign contributions to avoid the potential for that kind of crime.

The solution that the Supreme Court upheld in the case of Buckley v. Valeo was simply to limit the size of contributions, so that if the contribution was small enough it wouldn't be an offer for a bribe. Indeed, if it were offered as a bribe it would sound more like a joke.

Importantly, when the Court upheld limitations on contributions to campaigns, the people challenging that law asked, “Hey why isn't bribery law enough?” Because a contribution in exchange for a government benefit is a bribe.

But what the court said in Buckley was that Congress can regulate beyond bribery. Congress can regulate as a prophylactic to make sure the people can look at the system of funding campaigns and not believe that every politician somewhere is being bought.

So the principle the Court upheld was if there was a risk, and maybe only if there is a risk of quid pro quo corruption, then Congress may regulate.

Now let's think about a completely different case.

Imagine a candidate, Joe, and imagine somebody who wants to support the candidate Joe, but this time the speaker has no connection or coordination with the politician. His speech is independent of the politician. In 1976 the Supreme Court said that such independent speech could not be regulated and the reason was obvious given the principle the court had articulated about quid pro quo corruption. Because the speech is independent there could be no quid pro quo. And therefore - because there's no risk of quid pro quo corruption – there could be no justification for restricting that independent speech. Independent speech could spend in an unlimited way.

Then in 2010 in Citizens United the Supreme Court extended this reasoning to corporations and to unions. They too were now free to spend as much as they wanted in a political campaign, again, so long as they did not coordinate with the politician. No coordination meant no quid pro quo. No quid pro quo meant no power in Congress to limit that kind of speech.

So the principle here is if there is no risk of quid pro quo corruption then Congress cannot regulate.

Okay so here's where the cool stuff starts.

Let's go back to this picture of independent speech by individuals, corporations or unions and let's just add one more player to the board - a PAC, a political action committee.

And imagine this PAC is an independent PAC meaning it doesn't coordinate its speech with the candidate either.

The principle of Citizens United would suggest that just as with a rich person or a corporation or a union, this PAC, too, would be allowed to spend as much money as it wants so long as it does not coordinate its spending with the candidate.

Okay, now think about how this PAC raises its money.

In the ordinary case we might imagine a rich person showing up to the PAC and offering some kind of quid pro quo that could say, “I'll give you a million dollars, PAC, if you agree to run ads about the widget Bill,” and imagine the PAC says “okay.” And so there is this deal where the money is given to the PAC in exchange for the PAC saying what the independent rich person wants them to say. This is totally okay under the law of campaign finance because there is no coordination with the politician.

The quid pro quo between the PAC and the rich person is not illegal; the only potential illegality is if there's coordination between the rich person or the PAC and the politician.

And that was the principle that upheld in SpeechNow v. FEC, the case decided three months after Citizens United, the holding that contributions to independent political action committees cannot be regulated either. The DC Circuit held that so long as the PAC is independent the contribution to the PAC cannot involve corruption.

It is important to understand that the US Supreme Court has never held this.

But the DC Circuit did conclude that there could be no quid pro quo corruption without contributions to an independent political action committee.

And after the King of the Circuits had spoken, all of the other circuits (or practically all) just followed along, every single Court to consider the matter to the great embarrassment of American constitutional law has held that contributions to independent political action committees cannot be regulated because contributions to independent political action committees could not risk quid pro quo corruption.

But the DC circuit and these minions are just flat out wrong and obviously so.

Here's why:

Okay, let's modify the hypothetical just slightly. Let's imagine moving the rich person over next to the candidate. And imagine the rich person saying to the candidate “Hey, Senator I'll contribute a million dollars to your SuperPAC, if you'll do something in favor of the Widget Bill” and imagine the candidate God forbid saying, “Okay.”

That deal, in exchange for favors involving a contribution to a SuperPAC, is plainly quid pro quo corruption.

It's quid pro quo corruption because between the candidate and the donor there is a deal, even though the deal involves simply giving money to the PAC. And that deal therefore means there could be quid pro quo corruption even though it's just a donation to a SuperPAC.

You might say, “Could this really happen?”

But the answer is that this is exactly the pattern alleged (though not proven) against a New Jersey Senator. That the Senator agreed to give favors to the donor in exchange for the donor contributing to a SuperPAC that supported the Senator. So the point is this is quid pro quo corruption through a contribution to a SuperPAC.

What the DC Circuit had said was impossible is plainly possible, and it creates therefore the possible risk of quid pro quo corruption, which if the principle from Buckley is true means Congress should have the power to regulate such contributions.

Now you say, it's possible but is it really likely?

But remember - Buckley didn't ask “How likely it was that a contribution to a candidate was part of a quid pro quo bribe?” Buckley just asked, was there a risk? And there was a risk and that created the power in Congress to regulate against that risk.

But you still might say okay but how often is a gift to a SuperPAC the product of quid pro quo corruption?

And when you realize that SuperPACs receive contributions in the millions, one was over a billion, you could say it's certainly more likely that a contribution to a Super PAC is going to involve this type of illegal corruption than a contribution of $3,000 to a candidate, which is an amount that Congress has the power to regulate because the court has upheld the power to limit direct contributions because of this risk.

Yet the courts have said that the $3,000 contribution to the candidate can be limited but the billion dollar contribution to the SuperPAC cannot.

This is just crazy talk! It's madness.

If the one can be regulated then both should be able to be regulated. And if the remedy with respect to contributions to a candidate is to shrink the size of the contribution, that should be the same with contributions to a SuperPAC.

So much should be obvious.

Here's what we've learned:

The Supreme Court allows the regulation of contributions when they create a risk of quid pro quo corruption. Large contributions to candidates create that risk - the risk of quid pro quo corruption, so they can be regulated, the Supreme Court has said again and again and again.

But large contributions to SuperPACs create that same risk. The risk of quid pro quo corruption, and so they obviously should be able to be regulated too!

And so the King of the Circuits is just wrong, and the minions need to find a new leader.

That's the argument that points to the error at the core of the case that created SuperPACs.”

How can we end SuperPACs in Maine?

We have launched a citizens initiative, and you can help us by collecting signatures and donating to support our cause.