The Wall Street Journal’s Washington Wire has reported that in the first half of 2015, presidential Super PACs have raised a total of $211,457,755. This money is in addition to money raised directly by presidential candidate committees and does not include money raised by 501(c)(4) entities that might be involved in the political process.
Since Citizens United was decided in 2010, Super PACs have been a hot topic. Despite all of the press and discussion, it seems that confusion still surrounds Super PACs. So, we decided to go back to the basics:
- A Super PAC is an independent-expenditure-only committee, which means that it can only spend its money on expenditures that are not coordinated with candidates.
- A Super PAC may not make contributions to candidate committees.
- A Super PAC may raise unlimited funds.
- A Super PAC is required to disclose its donors.
- A Super PAC may be registered with the IRS, the FEC or a state election commission (depending on the nature of the Super PAC’s focus and activities).
- A Super PAC may be required to file reports with more than one government entity (depending on the nature and timing of its activities).
The United States Court of Appeals for the Ninth Circuit recently upheld a number of Hawaii’s contribution and disclosure requirements, thus cementing the legacy of Citizens United’s defense of transparency in campaign contributions and further strengthening the legality of outright bans on campaign contributions by government contractors.
The decision, citing to Citizens United, determined that Hawaii’s reporting and disclosure requirements, which require that “noncandidate committees” seeking to influence elections must file certain reports and identifying information related to their electioneering communications, survived exacting scrutiny and served the important governmental interest of informing the public about who is speaking in favor or opposition to a particular candidate.
Further, the decision upheld Hawaii’s outright ban on political contributions by entities that have contracts or perform services for the government. Relying on the Second Circuit’s decision in Green Party of Connecticut vs. Garfield, which upheld such a ban in Connecticut, the court reasoned that the history of pay-to-play scandals in a state can serve as a justification for actions which prohibit quid pro quo corruption, or even the appearance thereof.
The Ninth Circuit’s decision serves as a timely reminder that although Citizens United paved the way for big spending in elections, certain restrictions and disclosure requirements have persisted. Government contractors especially should consider the decision a clarion call that pay-to-play restrictions are here to stay.
Following a wave of judicial decisions that have cleared the way for more soft money in politics, federal legislators have continued to press for the passage of laws creating more stringent regulations on donor disclosures and transparency in political contributions.
The Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act was introduced in Congress in 2010 and 2012, but the legislation was twice defeated after falling short of overcoming a Republican-led filibuster. A third attempt at passing disclosure legislation, the DISCLOSE Act of 2014, was introduced by Senator Sheldon Whitehouse of Rhode Island and is currently being considered in the Senate Rules Committee. A hearing was held last week.
“DISCLOSE 2014” would:
- Broaden the definition of what is a reportable “independent expenditure,” by treating the functional equivalent of express advocacy as an independent expenditure ;
- expand the time periods during which a communication would be considered a reportable “electioneering communication,”
- require disclosure of donors underlying large transfers to political spenders,
- require that covered organizations (including corporations, labor unions and 501(c)(4) and 501(c)(6) nonprofit organizations) that spend more than $10,000 or more on election ads publicly identify their donors, and
- impose new required disclaimers for political advertisements.
The bill faces the hefty obstacle of garnering bipartisan support to become federal law. Nonetheless, DISCLOSE 2014 could serve as a model for state and local jurisdictions. While the Supreme Court (in decisions such as Citizens United and McCutcheon) has made it easier to generously fund political and issue advocacy organizations, the Court has also emphasized that disclosure requirements are both constitutional and beneficial to a healthy democracy. Accordingly, proponents of enhanced campaign finance transparency might find that the last bastion of reform lies in disclosure requirements like those introduced in DISCLOSE 2014.
Last week the New Jersey Election Law Enforcement Commission announced “[a]n unprecedented explosion of independent special interest spending pushed the cost of the 2013 state elections to an all-time high . . .” Although final numbers won’t be available until January, reports filed with ELEC indicate that spending on New Jersey’s 2013 elections reached a record $129 million. Special interest groups are responsible for spending nearly $41 million independent of parties and candidates on state campaigns during the recent election cycle. This constitutes approximately 32% of the total amount of money spent statewide (compared to .3% in the 2005 and 15% in 2009). Thus, the numbers have doubled since New Jersey’s last gubernatorial election.
This year marks the first election in which the governor’s office and all 120 seats of the legislature were up for grabs since the 2010 U.S. Supreme Court decision in Citizens United. Some argue that decision spurred this dramatic growth in independent spending, although it is worth noting that, unlike federal law prior to Citizens United, New Jersey campaign finance law did not restrict independent spending by corporations.
Yet it is apparent that Citizens United marks at least a psychological sea change that has driven up spending by independent entities and dramatically changed election dynamics in the Garden State.