Super PACs are independent expenditure committees that can take contributions of any size from any American individual, corporation, or labor union, and spend without limit. They made a huge splash when they were first formed in 2010, turning candidates' attention away from the merely rich and toward the fabulously wealthy. These are the fruits of Citizens United, and they go a long way toward explaining why that decision is still so widely opposed years after it was handed down. What all the attention paid to that decision misses, however, is that the roots of super PACs go much deeper. Like the other ways used to raise and spend money outside of FECA regulation, super PACs can be traced directly back to Buckley v. Valeo.
Where did the super PAC come from?
It came partly from Citizens United, which gave corporations the First Amendment right to make independent expenditures. And it came partly from SpeechNow v. FEC, a lower-court decision that struck down FECA's $5,000 limit on contributions to PACs that made only independent expenditures. Both decisions were based on the distinction Buckley made between contributions and expenditures.1
The $5,000 limit was on contributions to all PACs, something that Congress added to the 1976 FECA amendments. No one challenged it right away because it was so similar to the limit on individual donations upheld in Buckley. Those limits help prevent corruption, the court said, because a contribution is a direct gift to a candidate, a quid that can be exchanged for a corrupting quo. Not so for independent expenditures, which the court chose to believe really were independent. They were the pure speech of the spenders, not a way to corrupt candidates, and so fell squarely under the First Amendment's protection.
But if independent expenditures could not corrupt candidates, could the contributions made to finance them be corrupting? SpeechNow said they could not, and that the $5,000 limit on them did not serve the constitutional purpose of preventing corruption. The federal circuit court for the District of Columbia agreed, and struck down the limit on contributions to PACs that did only independent spending.2
The FEC acted a few months later to comply with the circuit court decision. Citing Citizens United and SpeechNow, the agency announced that what it called independent-expenditure-only PACs could now solicit unlimited contributions from individuals, corporations, and unions. Thus was born the super PAC.3
Many super PACs were formed in the months before the 2010 midterm elections, but by 2012 there were fifteen times as many and they had become the mega-fundraisers of the PAC world, raising more than all corporate and labor committees combined.4