Policy Fellow Matt Rumsey wrote this post.
Super PACs were the subject of an event hosted by the Advisory Committee on Transparency in January 2012. The event addressed the history of super PACs, legal issues surrounding them, and their potential effect on elections.
Eliza Newlin Carney, a staff writer for CQ Roll Call and the journalist who coined the term super PAC, got the discussion started. She argued that campaign finance transparency has been eroding for some time, sparked by increased activism from non-profit organizations that don't have to disclose their donors. She outlined three specific issues that have emerged with the rise of super PACs: FEC disclosure regulations are incomplete, super PACs can delay reporting their donors, and super PACs can use affiliated non-profits to obscure the identity of their donors.
Mimi Marziani, Counsel for the Democracy Program at the Brennan Center for Justice at the NYU School of Law, explained how super PACs came to be. She detailed how the Supreme Court's 2010 Citizens United decision set the stage for non-coordinated independent expenditures by lifting the ban on direct corporate and union participation in elections. The subsequent Court of Appeals' Speech Now decision found that the government cannot restrict unlimited business and labor contributions for these expenditures. Together, the two decisions led to the creation of super PACs. Marziani highlighted three assumptions included in these decisions that she found troubling. First, that independent expenditures are non-corrupting. Second, that anti-coordination rules are sufficient to prevent actual coordination. Finally, that current disclosure requirements are sufficient to shine light on these new avenues for political spending.
Paul Ryan, FEC Program Director and Associate Legal Counsel at the Campaign Legal Center, picked up some of the threads started by Marziani. According to Ryan, 8 of 9 Supreme Court justices endorsed the central role of disclosure for the campaign finance system. But, he argued that some significant deficits in current disclosure rules exist. It is easy for super PACs to obscure the corporate role in elections by accepting donations from non-profits that are not required to disclose their donors. Additionally, Ryan blamed dysfunction among FEC commissioners for preventing needed regulations from being instituted. He pointed out legislation, the DISCLOSE Act, which narrowly failed to pass through congress in 2010, and the SUPERPAC Act proposed by the Sunlight Foundation, that could solve some of these problems.
Allen Dickerson, Legal Director and Interim Executive Director of the Center for Competitive Politics, approached the topic with a different perspective. He argued that since super PACs already have to follow the same reporting rules as traditional PACs, more disclosure is not necessary. He then suggested that smaller donations are not particularly noteworthy and do not need to be subject to disclosure. Dickerson also took time to push against Paul Ryan's suggestion that super PACs would use non-profits to obscure their donors, calling the required process “inefficient”.
The event ended with a question and answer section that sparked an engaging discussion and pushed the panelists on a number of issues. They talked about the possibility that non-profits will be used to obscure donors, the level of coordination that is actually allowed between super PACs and candidates, and the practical effect that super PACs may have on the 2012 elections.
The event was moderated by Daniel Schuman, director of the Advisory Committee on Transparency. See the Sunlight Foundation's page on Disclosing Money in Elections or the Sunlight Foundation Reporting Group's super PAC resource page for more information.