Few subjects in federal campaign finance law are so frequently garbled by commentators, the press and the public as what a Super PAC is and how it operates. Here is a short list of common mistakes.
1. Super PACS are “shadowy” “dark money” groups that mask where their money comes from and how its spent.
Quite simply, nothing could be further from the truth. A Super PAC is among the most transparent outside spending groups around, disclosing to the public the source of all of its funds (including the name, address, occupation and employer of every person that gives over $200 in a year) and how it spends all those funds (including the name and address of every person or vendor that receives over $200 in a year, including the purpose of the disbursement). All that information is available on the web at www.fec.gov. Some complain that the disclosure is not fast enough or frequent enough. This is a problem mostly for those interested in the horse race aspect of politics. Super PACs can chose to disclose their activities either monthly or quarterly in election years and either monthly or semi-annually in non-election years. Others complain that entities such as 501(c)(4) social welfare groups (that do not publicly disclose their donors) can give to Super PACs and hence the source of those funds cannot be known. This problem arises from the laws that govern 501(c)(4) groups, not Super PACs.
2. Super PACs cannot talk to the candidates they support.
Wrong again. Federal law prohibits Super PACs from making expenditures in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, but that is a far cry from a total ban on communications. In fact, the FEC has specifically blessed candidates appearing at Super PAC fundraising events. Candidates must comply with restrictions on raising non-federal funds and cannot communicate with the Super PAC about its expenditures in a way that violates the coordination rules. So while Super PACs and candidates can talk about some things, like fundraising, they cannot talk about other things, like how the Super PAC is going to spend its money.
3. Super PACs can contribute to candidates.
One thing that Super PACs cannot do is make contributions directly to federal candidates. They can spend all they have explaining to citizens why they should vote for (or against) a particular candidate, but they cannot give a federal candidate (or her opponent) even a nickel as a contribution.
4. Corporations use Super PACs to funnel money into politics.
While corporations are permitted to give to Super PACs, very few do. Those that do are often small or privately-held corporations. The truth is that only on rare occasions have well-known, publicly-traded corporations given to a Super PAC.
5. If we amend the Constitution, we can do away with Citizens United and the Super PACs it created.
Well maybe, but Citizens United isn’t the problem. The idea of “independent expenditures” having a higher level of constitutional protection dates back to at least the 1976 Supreme Court decision in Buckley v. Valeo (practically the age of the dinosaurs in campaign finance law) and in some ways, even earlier than that. So a constitutional amendment that merely overturns Citizens United and bars corporations from making contributions or expenditures in federal elections will have very little practical effect on the Super PAC activity we have today.