Super PACs are a complicated entity to explain there is no part of the American legislative record that indicates neither

r their creation nor operating restrictions, as they were created solely through interpretations of Supreme Court rulings and Federal Election Commission advisory opinions. They have no elected official to point to their creation, since both bodies are appointed by the elected parts of the government. A super PAC is an independent expenditure-only committee that runs independently of a political campaign and uses donated money to run advertisements or other election-influencing initiatives that either support a candidate or oppose a candidate but cannot directly contribute to the campaign they are clearly supporting. They have clear rules on accountability, but it is possible and fairly simple to circumvent these rules by setting up shell corporations for anonymous donations. Ideally, there is supposed to be a wall of separation between the PAC and the candidate they are supporting, but the separation has no clear legal standard. Because they have no legislative origin, rulings and opinions can contradict each other, easily create loopholes, and provide no real punishment to breaking the rules set in place through trials and cases. In theory, and in all likelihood in practice, it is easy enough to anonymously donate corporate or union money to a shell company and then donate that money to the super PAC, which can accept unlimited donations and can sidestep federal campaign finance laws through the separation. Corporations and unions donating money are federally forbidden from donating money to a federal campaign or party. While the ads created by independent expenditures for campaigns are not direct monetary contributions, it can be argued these are in-kind donations. For

these reasons and a few others to be outlined, super PACs are a dangerous entity and violate the spirit and ideals of campaign finance reform. To explain how these committees can be dangerous to the American electoral process, how they were created needs to be clarified. Prior to the their creation, political action committees (PACs) could do what super PACs can do using donated funds to use independent expenditures (IE) to buy and create advertisements and initiatives to influence a federal election, but they could also donate $5000 to their supported candidate(s). They have to obey federal election laws on donations, such as five thousand dollars per two-year election cycle per candidate and report all contributions over $200 received to the FEC. Either a PAC could be connected or not to a major entity a union can have a PAC that can use money solicited from its supporters to support a pro-union candidates campaign, or it can be independent of a union and just raise money from individuals. More importantly, traditional PACs could only take a maximum amount of money from an individual only $5000 per person, per election. The Supreme Court case of Citizens United vs. Federal Election Commission in 2010 helped create super PACs. Citizens United wanted to run an attack documentary movie on Hillary Clinton before primaries. Since they were not making a direct contribution to a candidate, merely spending money on an elaborate attack ad and not coordinating with a specific candidate, they felt they were not held to a tenet of the McCain-Feingold campaign finance reform that prevented them from advertising their movie. A part of the reform (BCRA) prevented such an ad from being aired sixty days before a general election and thirty days before a primary election; the Court ruled (5-4 by party lines) this violated the First Amendment.

It violated the First Amendment, the Court ruled, because Citizens United is not a branch of a political campaign, and being independent, they have a First Amendment right to express their political ideas. Freedom of political speech is one of the strongest rights Americans have, and is routinely defended by the Court. In this instance, the Court states that donations and contributions are a form of expression relating to political speech - donating money for a specific cause or reason is expressing a political thought, and as a part of political speech, the government needs an incredibly strong interest to counter the ideas of freedom of political speech. The Court has long held that while there can be no limit on expenditures a candidate may spend on their campaign due it being a higher form of political speech as established in Buckley v. Valeo, donations can be limited in the interest of preventing corruption. The Court also holds anything creating a chilling effect on political speech must have the highest of compelling interests, thus meaning few considerations are important enough to limit political speech. Entities such as Citizens United became free to create independent expenditures for the express purpose of influencing an election because they are independent of the election and candidates, and therefore have a freedom of speech that does not run afoul of corruption, the primary problem BCRA sought to eliminate. Direct contributions can be made to these entities from unions and corporations, who are specifically and strictly forbidden from contributing to candidates, campaigns, or parties. This case overrode Austin v. Michigan Chamber of Commerce, which forbids corporations from making contributions to elections and campaign ads.

This particular type of PAC was codified in a DC district court case, SpeechNow v. Federal Election Commission, and strengthened with the ruling that contributions to this type of independent PAC that only runs advertisements influencing elections could not be limited another aspect of free political speech that was created in relation to political action committees. Independent expenditure-only committees now had been allowed to receive unlimited contributions and run any ad they chose to influence an election. These IEOCs became stronger with subsequent rulings Carey v. FEC ruled that IEOCs could accept money from corporations and unions as long as they are kept in a separate bank account, and the FEC agreed to de-regulate limits on these donations. Various advisory opinions led super PACs to advertise themselves on their presidents show (AO 2011-11), allow federal candidates and party officials to solicit contributions from individuals up to $5000 per person per election for the PAC (AO 2011-12) and accept unlimited funds from the public for specific IEs (AO 2010-09). The major result of these various rulings and opinions led to the creation of the super PAC a committee that may or may not be connected to a union/corporation but not a candidate/party, allowed to accept unlimited donations from public individuals or directly from a corporation/unions general treasury, have to disclose anything over $200 months after the donation, and can run election influencing ads paid for by those donations. Even though these rulings are complex, and the unwritten rules they create even more complex, there are a few key simple facts about super PACs. These PACs are

supposed to be independent of a political campaign, and legally, they are. They are not supposed to communicate with each other, and the PAC exists only to advocate the election or defeat of a specific candidate (independent expenditures) or inform audiences of a candidate during the pre-election period (electioneering communications). They cannot directly donate to a candidate/party, and therefore are not susceptible to anti-corruption efforts, they argue and the courts tend to agree. The PACs are held to regular PAC rules on public disclosure of donations. Their impact was felt immediately in the 2010 federal midterm elections 79 super PACs spent $90.4 million dollars in ten months to influence the election, but only ten PACs spent 75% of the total money, with American Crossroads topping the list at 25.8 million dollars. While the common conception is Republicans use super PACs because of policies that assist corporations, Democrats also use super PACs typical supporters such as unions have formed super PACs to run ads supporting Democrats. In fact, 60% of House super PAC ads supported the Democrats, but 70% of Senatorial PACs favored Republican candidates. Despite being legal and regulated, these PACs attack and defile the spirit of the McCain-Feingold Act, or Bipartisan Campaign Finance Act, which sought to control, expose and limit influential money spend in elections and prevent corruption, in this case being private money floating in a public election. Campaign finance reform in general since the 1970s sought to restrict corporate/union contributions made to campaign, which include but are not limited to gifts/subsidies/advances/loans or anything of value; this catch-all includes advertisements, the main product of super PACs as outlined in FEC Chair Bauerly and Commissioner Weintraubs opinion on a

request made by Karl Roves super PAC, American Crossroads. In his o pinion, Commissioner Walther explicitly states that these PACs attack the spirit of campaign finance reform, which sought to limit corruption by limiting money. Money has long been targeted as the most explicit way to detect corruption; it is why the BCRA sought to eliminate soft money (money donated to a party with an understanding of its use and an understanding of favors received) to remove the quid pro quo of donations equaling favors once the candidate is elected. The Acts language also allows room to maneuver and adjust to whatever currency is later used in exchange for favors. The obvious corruption of quid pro quo (dollars for favors) is one qualification the Supreme Court ruled could outweigh the freedom of political speech when considering campaign finance rules. The appearance of undue influence was a previous consideration to outweigh political speechs freedom, but Citizens United removed that consideration. Undue influence referred to money donated for a specific reason to a candidate, campaign, or party; this was a form of the aforementioned soft money concept the BCRA attempted to remove. By allowing corporations and unions to donate money directly to these PACs, undue influence might occur, but that is not enough to assure undue influence. Since the super PAC is independent of the candidate, direct coordination is not allowed and would invalidate the super PACs registration with the FEC. Therefore, as far as the Supreme Court is concerned, this independence means no corruption.

However, since the PAC can accept unlimited contributions from individual donors, it is possible that one person can fund an entire PAC by himself or herself. This would have to be reported, but it is possible to obscure the donation trail. It has been worked out that a shell organization can accept money anonymously, and then donate it to a PAC and report it. A 501(c)(4) group can accept money anonymously and then turn around and donate it directly to a PAC, as television show host Stephen Colbert was told by former FEC Chairman Trevor Potter during Colberts own exploration of forming a PAC. Colbert took this advice, and formed his appropriately named Anonymous Shell Corporation to funnel money into his super PAC. Colberts exploration and discussion of the super PAC highlights many of the dangers to campaign finance these entities create a potential for huge amounts of anonymous money to move through elections, influencing both the public and the candidates. Potter cannot explain the difference between money laundering and funneling secret money from the corporation into known money in the super PAC, and Colbert can hardly believe this is legal. As far as the Supreme Court says, so long as there is a personnel and communication separation between the candidate/party and the PAC, it is not corruption there is no literal exchange of dollars for favors. Legally, the separation stands, but there has been one major attempt to eliminate the separation and create a source of unlimited funds for a campaign. Karl Roves conservative super PAC American Crossroads filed a request for an advisory opinion from the FEC in 2011 for a ruling in what was proposed by Crossroads

as directly coordinating with a candidate funding, writing, creating, and producing an ad for an incumbent with the candidate directly involved. This would have been direct coordination, and fully reported to the FEC, as admitted by Crossroads. The ads would have been similar to the candidates own ads, including messages, themes, and a direct voiceover and appearance from the candidate. It was an attempt to codify what the Court's logic for allowing the PAC funding to be unlimited with no direct and obvious proof of dollars for favors corruption, the FEC should allow this under the consideration that without dollars for favors, this did not count as a contribution and should be allowed. Draft D was formed rejecting the proposal and codifying ads from IEOC as direct contributions, and was the official opinion the FEC would vote on, revoking Crossroads desire to have their plan approved. The six member bipartisan commission split three votes to three on allowing this, meaning Crossroads could not follow through with its plan to coordinate directly, but these ads were not explicitly codified as direct contributions. The three approving members of Crossroads request Vice Chair Hunter and Commissioners McGahn and Petersen agreed with the PAC and voted against the draft; lack of direct dollars for favors means no corruption and no direct contributions, therefore the ads can be made. They felt denying PACs this power would create a chilling effect on political speech and an atmosphere where no political ad would be safe, and with no money being donated to the candidate, no corruption could occur. They are also Republicans.

The other three members, Democrats, felt the opposite. Previously mentioned, Bauerly and Weintraub argued that contributions mean anything of value, and that directly coordinating to produce an political advocacy ad would be a contribution of substantial value, and this would be an in-kind donation. Since Crossroads admitted this would be coordination and a contribution, there was no option for these two but to agree with Crossroads this is coordination and a contribution but also forbidding the PAC from doing this. With the idea that anything of value, including an ad campaign, could be considered a donation, this could be taken to eliminate or at least hamper super PAC money. Since corporations and unions cannot directly donate or contribute to a campaign, calling an ad campaign that benefits them a contribution would kill IEs directly funded by corporations and unions. Commissioner Walther agreed with Bauerly and Weintraub, but expanded on his disapproval of the formation of super PACs and suggested ways to restrict their power to raise and spend money. He also pointed out that the request, in plain language, agreed these would be in-kind donations and would then conflict with campaign finance reforms goal of removing private influence from elections. Feeling the FEC should draw stricter language on what constituted a contribution, he argued they should adopt a standard of Pass, Attack, Support, or Oppose (PASO) to determine if a political advocacy ad counts as a contribution. Citing Buckley, Walther stated coordination of these independent expenditures with the campaign would create a danger of quid quo pro doing this ad for the campaign could lead to a reciprocation down the line after

assumption of office, equating the contribution of an advertisement to dollars donated to a campaign. The FEC could not reach a definite conclusion on the issue the 3-3 split means the request is denied, but nothing else was decided, leaving the status quo. There were two dueling compelling interests the prevention of political speech chilling from Republicans, and the prevention of quid quo pro corruption from Democrats. These PACs are allowed to exist so long as they do not directly coordinate with the candidate they are supporting, and the ruling meant while the PAC could not do this, the much more important question of these ads being considered coordination and contribution in any effect was not answered. Considering an ad campaign consisting of PASO messages a contribution would lead to a stronger ruling against super PACs, removing the anonymous element of a shell corporation scheme directly outlined by Colbert and restrict super PACs to only taking individual donations, which must be reported weakening super PACs to the point of being ads directly and publicly supported by individuals, removing a shadowy element from super PACs. If the FEC had come a ruling that supported the notion of funding supporting ads independently of the candidate a contribution, many things would change about the nature of super PACs; merely denying Crossroads their plan was not enough and did not address the larger issue at hand. Perhaps the most important issue relating to independence is how truly independent these groups are from the campaign. There is nothing stopping a highranking member of a campaign such as a manager from leaving the campaign and

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founding their own PAC created specifically to assist the candidate they just left. Even without proof of direct coordination, the former campaign member will certainly know how to assist their candidate with super PAC money and use plans formulated before they left the campaign without specific legislation preventing this, it can happen, and has happened with several prominent campaigns. Coupled with private money, this would give an unfair advantage to this particular candidate by creating specific and numerous ads to aid them in their campaign. It is not a coincidence that votes in the various appointed bodies have been split along party lines Citizens United was ruled five Republican votes to four Democrat votes, and the major ruling for Crossroads request was split between Republicans and Democrats. In 2010, conservative super PAC American Crossroads spent the most cash, and spent $105 million of over six hundred million total dollars of all super PACs in 2012. Based on these two elections, conservatives seem to be able to raise an absurd amount of money for super PACs, logical considering the GOPs favoritism towards corporations and the legal way to funnel secret money into elections. In addition, while Democrats can also benefit from super PAC money, they are most likely worried about being outraised by conservative super PACs. Ideology does not matter; what matters is how groups and individuals are skirting laws on campaign finance. These ads provided by an independent committee should be considered a contribution, since they provide benefits for a candidate, even if the ads are attacking a candidate without mentioning the candidate benefiting from those attacks. This could be made even worse if the moneys source is from a union or corporation . If PASO ads were considered a contribution, then super PACs advocacy ads would fly in the face of

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BCRAs ban on soft money and donations from unions and corporatio n, and its overall spirit of trying to remove influence from public federal elections. BCRA also tries to make all money involved in a campaign publicly known, and the possibility of making money unknown directly attacks this component of BCRA. These assault the spirit, and nearly the laws, created by campaign finance reforms various attempts. These ads create a benefit for the candidate by PASO standards, and thus should be considered a direct contribution, specifically an in-kind donation as the candidate could also create this ad campaign, and they are instead being supported by an independent organization. FECAs language allows the catchall of anything of value; campaign ads are certainly an item of value candidates with widespread ad coverage benefit from the blanketing a well-funded ad campaign creates. This is a contribution, since it can hardly be argued an advertisement is not a donation by PASO standards for the benefited candidate. Just creating a benefit is not enough; donations are allowed under federal campaign finance laws. Not allowed are direct donations from corporations and unions that are allowed, blatantly and legally, to donate to super PACs with unlimited funds. If the effects created by super PACs are considered a donation and they should be then they cannot be funded by corporations and unions. However, corporations and unions can anonymously donate to a shell corporation, which can then publicly donate unlimited money to the super PAC. While evidence is hard to obtain, and would be obtained through trials, just the fact it can be done is enough to prove it can be used as an avenue for private corporate or union money to influence the government in an election corruption.

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The freedom of political speech is still allowed the candidate is under no additional restrictions by banning super PACs and their shadowy loopholes, and the truer form of political speech is allowed to continue. Corruption is a compelling government interest capable of countering the importance of freedom of political speech, and super PACs create a strong chance to corrupt anonymously the system by injecting private money into a public election in mass amounts. Therefore, super PACs creating ads or other IEs that directly benefit a candidate need to be considered an in-kind donation and therefore need to be clean of corporate or union money. The loophole allowing a shell organization to anonymously accept money and then publicly donate that money to a super PAC must also be closed. Since no specific legislation creating super PACs exists, legislation needs to be written to counter their effects and influence. These PACs and their IEs assault the spirit, and the law, of decades of campaign finance reform.

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