Super PACs in Federal Elections:
Overview and Issues for Congress
R. Sam Garrett
Specialist in American National Government
September 12, 2012
Congressional Research Service
7-5700
www.crs.gov
R42042
CRS Report for Congress
Prepared for Members and Committees of Congress
Super PACs in Federal Elections: Overview and Issues for Congress
Summary
Super PACs emerged after the U.S. Supreme Court permitted unlimited corporate and union
Overview and Issues for Congress
April 4, 2013
(R42042)
Summary
Super PACs emerged after the U.S. Supreme Court permitted unlimited corporate and union spending on elections in January 2010 (Citizens United v. Federal Election Commission
). ).
Although not directly addressed in that case, related, subsequent litigation (SpeechNow v. Federal
Election Commission
) ) and Federal Election Commission (FEC) activity gave rise to a new form
of political committee. These entities, known as super PACs or independent-expenditure-only
committees (IEOCs), have been permitted to accept unlimited contributions and make unlimited
expenditures aimed at electing or defeating federal candidates. Super PACs may not contribute
funds directly to federal candidates or parties.
This report explores what super PACs are, how they developed,
and what they raised and spent in the
2010 election cycle, and preliminary analysis of 2012 activity 2010 and 2012 election cycles. As of this writing, Congress has
not amended the Federal Election Campaign Act (FECA) to
formally recognizerecognize formally the role of super
PACs. No legislation introduced
in the 112ththus far in the 113th Congress focuses specifically on super PACs, but
some bills contain relevant provisions. H.R.
3585 (Price, N.C.) proposes new disclaimer
requirements that would apply to ads funded by super PACs and other entities. The same is true
for a revised270 (Price, N.C.) would bar super PAC fundraising by federal candidates and officeholders. The latest version of the DISCLOSE Act, H.R.
4010 (Van Hollen), introduced in the House in
February 2012. Two Senate companion measures (S. 2219; S. 3369) have been introduced by
Senator Whitehouse. The DISCLOSE Act would also require additional funding disclosure that
could affect super PACs. The148 (Van Hollen), proposes new disclaimer requirements that would apply to ads funded by super PACs and other entities. At the agency level, the FEC has issued advisory opinions, but has not yet approved
regulations
on the subject.
governing super PACs.
Despite limited policy action on super PACs, these new entities are quickly occupying a major
place in federal elections. In just 10 months of operation in 2010, almost 80 super PACs emerged,
spending a total of approximately $90 million—more than $60 million of which went to elect or
defeat federal candidates through independent expenditures. Super PAC
financial activities appear
likely to be even more ambitious in 2012. Approximately 600 super PACs are currently registered
with the FEC. Some of the most prominent such groups are reportedly staffed by operatives with
close ties to 2012 presidential campaigns. As of September 2012, the groups had reported
spending more than $236 million for the 2012 cycleactivity increased sharply in 2012; more than 400 active super PACs spent more than $600 million directly supporting or opposing candidates. Various issues related to super PACs may be
relevant as Congress considers how or whether to pursue legislation or oversight on the topic.
These include relationships with other political committees and organizations, transparency, and
independence from campaigns.
For those advocating their use, super PACs represent freedom for individuals, corporations, and
unions to contribute as much as they wish for independent expenditures that advocate election or
defeat of federal candidates. Opponents of super PACs contend that they represent a threat to the
spirit of modern limits on campaign contributions designed to minimize potential corruption.
This report will be updated periodically to reflect major developments.
Congressional Research Service
Super PACs in Federal Elections: Overview
and Issues for Congress
Contents
Introduction and Highlights of Key Findings .................................................................................. 1
Organization and Scope of the Report ............................................................................................. 2
What Are Super PACs?.................................................................................................................... 3
Why Might Super PACs Matter to Congress? ................................................................................. 7
How Have Super PACs Been Regulated?........................................................................................ 7
What Information Must Super PACs Disclose?............................................................................. 11
Overall, What Did Super PACs Raise and Spend in the 2010 Federal Elections?......................... 13
What Did Super PACs Spend Supporting or Opposing Congressional Candidates in
2010? .......................................................................................................................................... 15
What Have Super PACs Raised and Spent So Far in 2012? .......................................................... 21
What Major Super PAC Issues Might Be on the Horizon?............................................................ 24
Conclusion ..................................................................................................................................... 30
Figures
Figure 1. Top 10 Super PACs by Receipts and Disbursements, 2010 ........................................... 14
Figure 2. Support and Opposition for House Candidates in 2010 Super PAC Independent
Expenditures ............................................................................................................................... 17
Figure 3. Support and Opposition for Senate Candidates in 2010 Super PAC Independent
Expenditures ............................................................................................................................... 18
Figure 4. The 25 Congressional Races in 2010 in Which Super PACs Spent the Most on
Independent Expenditures .......................................................................................................... 19
Figure 5. Super PACs Raising or Spending At Least $1 Million in 2011...................................... 22
Figure 6. Sample Disclosure for Corporations and Unions Using Direct Spending versus
Contributions to Other Entities................................................................................................... 27
Tables
Table 1. Basic Structure of Super PACs versus Other Political Committees and
Organizations................................................................................................................................ 4
Table 2. Super PACs that Made At Least $250,000 in Independent Expenditures in 2010.......... 15
Table 3. Overview of Campaigns Affected by 2010 Super PAC Independent Expenditures ........ 16
Table 4. The 25 Congressional Races in 2010 in Which Super PACs Spent the Most on
Independent Expenditures .......................................................................................................... 19
Table 5. The 10 Super PACs Reporting the Most Receipts and Disbursements for the
2012 Election Cycle.................................................................................................................... 24
Congressional Research Service
Super PACs in Federal Elections: Overview and Issues for Congress
Appendixes
Appendix. Methodological Notes .................................................................................................. 31
Contacts
Author Contact Information........................................................................................................... 32
Congressional Research Service
Super PACs in Federal Elections: Overview and Issues for Congress
Introduction and Highlights of Key Findings
Introduction and Highlights of Key Findings
The development of super PACs is one of the most recent components of the debate over money
and speech in elections. Some perceive super PACs as a positive consequence of deregulatory
court decisions in Citizens United and related case
SpeechNowSpeechNow. For those who advocate for super
PACs, these new political committees provide an important outlet for political speech advocating
independent calls for election or defeat of federal candidates. Others contend that they are the
latest outlet for unlimited money in politics that, while legally independent, are functional
extensions of one or more campaigns.
This report does not attempt to settle that debate, but it does provide context for understanding
what the rapidly developing topic of what super PACs might mean for federal campaign finance policy
and federal elections. The report does so through a question-and-answer format with attention to
super PAC activities in 2010
, preliminary analysis of 2012-cycle data and 2012, and what those findings
might mean looking ahead.
Selected findings and observations include the following points.
•
Super PACs potentially have major policy and electoral consequences. A variety
of issues related to the state of law and regulation affecting super PACs,
disclosure, agency administration, and other topics might be relevant as Congress
considers whether to pursue oversight or legislation.
•
Additional regulation of super PACs might be attractive to those who believe that
these organizations are thinly veiled extensions of individual campaigns. Those
who believe super PACs are independent speakers might counter that super
PACs’ PACs' spending is not coordinated with campaigns and, therefore, should be
subject to fewer disclosure requirements or other obligations than entities that
can contribute to candidates.
•
Most super PACs are financially modest, but a few raise and spend substantial
sums. Ten super PACs accounted for almost 75% of all super PAC spending in
2010. A similar distinction has appeared thus far during the 2012 cycle. During
2011—the first year of the 2012 cycle— 2010. A similar, but less dramatic, distinction emerged during the 2012 cycle, when 10 super PACs accounted for
72% of all
super PAC spending.
•
For the 2012 cycle, by September of that year super PACs had spent
approximately $236 million and appear to be poised to spend far more. They had
raised more than $340 million.
•
Super PACs targeted their 2010 spending to favor particular parties and races.
Most super PAC spending occurred in Senate races, where spending favored
Republicans. Overall super PAC activity in House races favored Democrats. Thus
far in 2012, the most prominent super PAC activity has surrounded specific
presidential campaigns.
•
Some individuals, corporations, and unions have made contributions exceeding
hundreds of thousands of dollars, or even exceeding $1 million, to super PACs
supporting specific 2012 candidates. These contributions are permissible but, for
some, raise concerns because of the way in which they are disclosed, because
they would be impermissible if given directly to candidate campaigns, or both.
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Super PACs in Federal Elections: Overview and Issues for Congress
Organization and Scope of the Report
Questions and answers about selected super PAC topics organize the following discussion. In
particular:
•
approximately 65% of total spending.
For the 2012 cycle, super PACs raised a total of $826.6 million and spent a total of $799.2 million.
In 2010 and 2012, 70%-80% of super PAC spending directly supported or opposed federal candidates through independent expenditures (IEs). Super PACs spent $620.9 million on IEs supporting and opposing House, Senate, and presidential candidates in 2012—almost 10 times the approximately $65 million spent in 2010.
Super PAC IEs in 2012 House and Senate races were more likely to favor Democrats than in 2010. Most super PAC IEs at the presidential level favored Republicans.
Large contributions are permissible but, for some, raise concerns because of the way in which they are disclosed, because they would be impermissible if given directly to candidate campaigns, or both. The original source of super PAC contributions need not necessarily be reported to the FEC if the contributions are routed through entities such as some 501(c) organizations.Organization and Scope of the Report
Questions and answers about selected super PAC topics organize the following discussion. In particular:
Brief Answer sections provide short summary information responding to each
question.
•
The Discussion
The Discussion following the brief answers expands on the analysis. These
sections include bullet points designed to help the reader navigate the text.
•
Tables and figures throughout the report summarize selected fundraising and
spending data discussed in the text.
Before proceeding, readers should be aware of this report
’'s scope and purpose. This report is
intended to provide an overview of the developing role of super PACs in American elections, with
an emphasis on summaries of available spending data and major policy issues that may face
Congress.
11 The report discusses selected litigation to demonstrate how those events have changed
the campaign finance landscape and affected the policy issues that may confront Congress; it is
not, however, a constitutional or legal analysis.
The report is also not intended to be a political analysis of strategic advantages or disadvantages
surrounding the choice to form a super PAC, or of super PACs
’' effects on individual candidates.
Fully addressing how super PACs affected individual races and candidates would require political
analysis beyond the scope of this report. Nonetheless, understanding aggregate spending patterns
in individual races (as opposed to campaigns) may assist Congress in its consideration of
potential legislative, regulatory, or oversight responses.
Given the rapid development and frequently changing nature of super PACs, the report is not
intended to address every organization or policy issue that may be relevant. It reflects current
understanding of super PACs based on the analysis described throughout the report. Importantly,
however, because federal election law and regulation have not been amended to address the role
of super PACs, the findings presented here may be subject to alternative interpretations or future
developments. Campaign finance data discussed in the report were collected and analyzed as
noted in the text and discussed in the
Appendix.
Appendix.
Finally, a note on terminology may be useful. The term independent expenditures (IEs) appears
throughout the report. IEs refer to purchases, often for political advertising, that explicitly call for
election or defeat of a clearly identified federal candidate (e.g.,
“"vote for Smith,
” “vote against
Jones”" "vote against Jones"). Campaign finance lexicon typically refers to making IEs, which is synonymous with the
act of spending funds for the purchase calling for election or defeat of a federal candidate. Parties,
PACs, individuals, and now, super PACs, may make IEs. IEs are not considered campaign
contributions and cannot be coordinated with the referenced candidate.
2
1
For a discussion of current campaign finance issues generally, see CRS Report R41542, The State of Campaign
Finance Policy: Recent Developments and Issues for Congress, by R. Sam Garrett.
2
On the definition of IEs, see 2 U.S.C. §431(17).
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Super PACs in Federal Elections: Overview and Issues for Congress
What Are Super PACs?
Brief Answer
2
What Are Super PACs?
Brief Answer
Super PACs first emerged in 2010 following two major court rulings that invalidated previous
limits on contributions to traditional PACs. As a result of the rulings, in Citizens United
and
SpeechNowand SpeechNow, new kinds of PACs devoted solely to making independent expenditures emerged.
3
3 These groups are popularly known as super PACs; they are also known as
independentexpenditureindependent-expenditure-only committees
(IEOCs(IEOCs). Independent expenditures (IEs) are frequently used to
purchase political advertising or fund related services (such as voter-canvassing). IEs include
explicit calls for election or defeat of federal candidates but are not considered campaign
contributions.
IEs must be made independent of parties and candidates. In campaign finance parlance, this
means IEs cannot be
coordinatedcoordinated with candidates or parties. Determining whether an expenditure
is coordinated can be highly complex and depends on individual circumstances.
44 In essence,
however, barring those making IEs from coordinating with candidates means that the entity
making the IE and the affected candidate may not communicate about certain strategic
information or timing surrounding the IE. The goal here is to ensure that an IE is truly
independent and does not provide a method for circumventing contribution limits simply because
an entity other than the campaign is paying for an item or providing a service that could benefit
the campaign.
Table 1 provides an overview of how super PACs compare with other political committees and
political politically active organizations. In brief, super PACs are both similar to and different from traditional
PACs. Super PACs have the same reporting requirements as traditional PACs, and both entities
are regulated primarily by the federal election law and the FEC as political committees. Unlike
traditional PACs, super PACs cannot make contributions to candidate campaigns. Super PACs
’
' abilities to accept unlimited contributions make them similar to organizations known as 527s
and
and some 501(c) organizations that often engage in political activity.
55 However, while these groups
are governed primarily by the Internal Revenue Code (IRC), super PACs are regulated primarily
by the FEC. Unlike 527s as they are commonly described, super PACs are primarily regulated by
the federal election law and regulation.
3
130 S. Ct. 876 (2010); and 599 F.3d 686 (D.C. Cir. 2010) respectively.
The discussion here is not intended to be exhaustive. For additional information, see, for example, 11. C.F.R. §109.20
and 11 C.F.R. §109.21.
5
As the term is commonly used, 527 refers to groups registered with the Internal Revenue Service (IRS) as Section 527
political organizations that seemingly intend to influence federal elections in ways that may place them outside the
FECA definition of a political committee. By contrast, political committees (which include candidate committees, party
committees, and political action committees) are regulated by the FEC and federal election law. There is a debate
regarding which 527s are required to register with the FEC as political committees. For additional discussion, see CRS
Report RS22895, 527 Groups and Campaign Activity: Analysis Under Campaign Finance and Tax Laws, by L. Paige
Whitaker and Erika K. Lunder. All political committees, including super PACs, are Section 527 political organizations
for tax purposes.
4
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Super PACs in Federal Elections: Overview and Issues for Congress
by the FEC. Unlike 527s as they are commonly described, super PACs are primarily regulated by the federal election law and regulation.
Table 1. Basic Structure of Super PACs versus Other Political Committees and Organizations
(Refers to federal elections only)
Is the entity
typically
considered a
political
committee by
the FEC?
Must certain
contributors be
disclosed to the FEC?
Can the entity make
contributions to
federal candidates?
Are there limits on
the amount the entity
can contribute to
federal candidates?
Can federal
candidates raise
funds the entity
plans to
contribute in
federal elections?
Are there limits on
contributions the
entity may receive for
use in federal
elections?
Super PACs
Yes
Yes
No
Not permitted to make
federal contributions
Yes, within FECA
limits
No
“Traditional” PACsa
Yes
Yes
Yes
$5,000 per candidate,
per election
Yes, within FECA
limits
$5,000 annually from
individuals; other limits
established in FECAb
Party Committees
Yes
Yes
Yes
$5,000 per candidate,
per election
Yes, within FECA
limits
$30,800 from individuals;
other limits established
in FECA
Candidate
Committees
Yes
Yes
Yes
$2,000 per candidate,
per election
Yes, within FECA
limits
$2,500 per candidate,
per election from
individuals; other limits
established in FECA
527sc
No
No, unless independent
expenditures or
electioneering
communicationsd
No
Not permitted to make
federal contributions
N/A
No
501(c)(4)s, (5)s,
(6)se
No
No, unless independent
expenditures or
electioneering
communicationsf
No
Not permitted to make
federal contributions
N/A
No
Source:
Is the entity typically considered a political committee by the FEC?
|
Must certain contributors be disclosed to the FEC?
|
Can the entity make contributions to federal candidates?
|
Are there limits on the amount the entity can contribute to federal candidates?
|
Can federal candidates raise funds the entity plans to contribute in federal elections?
|
Are there limits on contributions the entity may receive for use in federal elections?
|
|
Super PACs
|
Yes
|
Yes
|
No
|
Not permitted to make federal contributions
|
Yes, within FECA limits
|
No
|
"Traditional" PACsa
Yes
|
Yes
|
Yes
|
$5,000 per candidate, per election
|
Yes, within FECA limits
|
$5,000 annually from individuals; other limits established in FECAb
|
National Party Committees
|
Yes
|
Yes
|
Yes
|
$5,000 per candidate, per election
|
Yes, within FECA limits
|
$32,400 from individuals (2014 cycle); other limits established in FECA
|
|
Candidate Committees
|
Yes
|
Yes
|
Yes
|
$2,000 per candidate, per election
|
Yes, within FECA limits
|
$2,600 per candidate, per election from individuals (2014 cycle); other limits established in FECA
|
527sc
No
|
No, unless independent expenditures or electioneering communicationsd
No
|
Not permitted to make federal contributions
|
N/A
|
No
|
501(c)(4)s, (5)s, (6)se
No
|
No, unless independent expenditures or electioneering communicationsf
No
|
Not permitted to make federal contributions
|
N/A
|
No
|
Source: CRS adaptation from Table
11 in CRS Report R41542, The State of Campaign Finance Policy: Recent Developments and Issues for Congress
, by [author name scrubbed]; and , by R. Sam Garrett; and
Federal Election Commission,
“"Contribution Limits
for 2011-2012,” 2013-2014," http://www.fec.gov/
info/contriblimits1112.pdf.
ans/answers_general.shtml.
Notes: The table does not include the following notes regarding additional limitations on contributions: (1) For individuals, a special biennial limit of $
117,000 ($46,200 to
123,200 ($48,600 to all candidate committees and $
70,80074,600 to party and PAC committees) also applies. These amounts are adjusted biennially for inflation; (2) The national party committee and
the national party Senate committee (e.g., the DNC and DSCC or RNC and NRSC) share a combined per-campaign limit of $
43,10045,400, which is adjusted biennially for
inflation.
a.
CRS-4
a. This report uses the term traditional PACs to refer to PACs that are not super PACs. Here, the term includes separate segregated funds, nonconnected committees,
and leadership PACs. The table assumes these PACs would be
multicandidate committees. multicandidate committees. Multicandidate committees are those that have been registered with the FEC
(or, for Senate committees, the Secretary of the Senate) for at least six months; have received federal contributions from more than 50 people; and (except for state
Super PACs in Federal Elections: Overview and Issues for Congress
parties) have made contributions to at least five federal candidates. See 11 C.F.R. §100.5(e)(3). In practice, most PACs attain multicandidate status automatically over
time.
b.
b. As noted later in this report, nonconnected PACs utilizing an exemption per the
CareyCarey case may raise unlimited amounts for independent expenditures if those
amounts are kept in a separate bank account and not used for contributions.
c.
c. As the term is commonly used,
527527 refers to groups registered with the Internal Revenue Service (IRS) as Section 527 political organizations that seemingly intend to
influence federal elections in ways that place them outside the FECA definition of a political committee. By contrast, political committees (which include candidate
committees, party committees, and political action committees) are regulated by the FEC and federal election law. There is a debate regarding which 527s are required
to register with the FEC as political committees. FEC contributor disclosure for these organizations applies only to those who designate their contributions for use in
independent expenditures or electioneering communications. This table does not address general reporting obligations established in tax law or IRS regulations. For
additional discussion, see CRS Report RS22895, 527 Groups and Campaign Activity: Analysis Under Campaign Finance and Tax Laws
, by [author name scrubbed] and [author name scrubbed].
d. , by L. Paige Whitaker and Erika K.
Lunder.
d.
Federal tax law requires that 527s periodically disclose to the IRS information about donors who have given at least $200 during the year. See 26 U.S.C. §527(j). This
information is publicly available. See 26 U.S.C. §6104.
e.
e. For additional discussion of these groups, see CRS Report RL33377, Tax-Exempt Organizations: Political Activity Restrictions and Disclosure Requirements
, by [author name scrubbed], by Erika K.
Lunder; and CRS Report R40183, 501(c)(4) Organizations and Campaign Activity: Analysis Under Tax and Campaign Finance Laws
, by [author name scrubbed] and [author name scrubbed].
f. , by Erika K. Lunder and L. Paige Whitaker.
f.
Federal tax law requires that these groups disclose information to the IRS about donors who have given at least $5,000 annually. See 26 U.S.C. §6033. Unlike
information on donors to political committees and 527s, however, this information is confidential and not made public. See 26 U.S.C. §6104.
CRS-5
Super PACs in Federal Elections: Overview and Issues for Congress
Discussion
Discussion
Super PACs originated from a combination of legal and regulatory developments. Most notably,
in January 2010, the Supreme Court issued a decision in Citizens United v. Federal Election
Commission.6 Commission.6 Citizens United did not directly address the topic of super PACs, but it set the stage
for a later ruling that affected their development, as discussed below.
Citizens United
and SpeechNow
and SpeechNow
As a consequence of Citizens United, corporations and unions are now free to use their treasury
funds to
airmake expenditures (such as for airing political advertisements
) explicitly calling for election or defeat of federal or state
candidates (independent expenditures or
IEsIEs), or for advertisements that refer to those candidates
during pre-election periods, but do not necessarily explicitly call for their election or defeat
( (electioneering communications). Previously, such advertising would generally have had to be
financed through voluntary contributions raised by traditional PACs (those affiliated with unions
or corporations, nonconnected committees, or both).
A second case paved the way for what would become super PACs. Following Citizens United, on
March 26, 2010, the U.S. Court of Appeals for the District of Columbia held in SpeechNow.org v.
Federal Election
Commission7Commission7 that contributions to PACs that make only IEs—but not
contributions—could not be constitutionally limited.
Also known as independent-expenditure-only committees (IEOCs), the media and other observers
called these new political committees simply super PACs. The term signifies their structure akin
to traditional PACs but without the contribution limits that bind traditional PACs. As discussed in
the next section, after Citizens United
and SpeechNowand SpeechNow, the FEC issued advisory opinions that
offered additional guidance on super PAC activities.
As the data discussed below show, the most obvious effects from super PACs are likely to be on
the nation
’'s electoral campaigns. By definition, super PACs are devoted to engaging in
independent activities. They
cannot8cannot8 make direct contributions to campaigns or coordinate their
activities with campaigns. Nonetheless, super PACs could dramatically shape the environment
affecting campaigns, particularly if they choose to engage in express advocacy that explicitly
calls for election or defeat of particular candidates. In addition, despite prohibitions on
coordination of their activities with campaigns, some observers have raised concerns that super
PACs might not be independent of candidate campaigns in practice.
99 Super PACs are treated as
political committees and are regulated primarily by FECA and FEC regulations, unlike some
6
130 S. Ct. 876 (2010). For additional discussion, see CRS Report R41045, The Constitutionality of Regulating
Corporate Expenditures: A Brief Analysis of the Supreme Court Ruling in Citizens United v. FEC, by L. Paige
Whitaker.
7
599 F.3d 686 (D.C. Cir. 2010).
8
Federal election law and FEC regulations have not been amended to clarify the role of super PACs. SpeechNow and
related FEC advisory opinions have held that super PACs cannot make contributions to candidates or parties.
9
This is particularly true, some argue, for super PACs that are believed to be organized primarily for supporting or
opposing particular campaigns rather than several campaigns. See, for example, Fred Wertheimer, “Democracy Loses
With Super PACs,” Politico, September 28, 2011, p. 27.
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Super PACs in Federal Elections: Overview and Issues for Congress
other “outside” political committees and are regulated primarily by FECA and FEC regulations, unlike some other "outside" spenders, such as organizations regulated primarily under Sections 527 and
501(c) of the Internal Revenue Code (IRC).
Why Might Super PACs Matter to Congress?
Brief Answer
Brief Answer
The development of super PACs is one of the most recent chapters in the long-running debate
over political spending and political speech. Super PACs potentially have major regulatory and
electoral consequences. As data in this report show, super PACs have emerged quickly and have
become a powerful spending force in federal elections. Nonetheless, as of this writing, federal
election law and regulation have not been amended to formally recognize and clarify the role of
super PACs. Congress may wish to consider the issue through legislation or oversight.
Discussion
Discussion
Several policy issues and questions surrounding super PACs may be relevant as Congress
considers how or whether to pursue legislation or oversight. These topics appear to fall into three
broad categories:
•
the state of law and regulation affecting super PACs,
•
transparency surrounding super PACs, and
•
how super PACs shape the campaign environment.
For those advocating their use, super PACs represent newfound (or restored) freedom for
individuals, corporations, and unions to contribute as much as they wish for independent
expenditures that advocate election or defeat of federal candidates. Opponents of super PACs
contend that they represent a threat to the spirit of modern limits on campaign contributions
designed to minimize potential corruption.
Additional discussion of these subjects appears throughout this report.
How Have Super PACs Been Regulated?
Brief Answer
Brief Answer
Thus far, Congress has not enacted legislation specifically addressing super PACs. Existing
regulations and law governing traditional PACs apply to super PACs in some cases. The FEC has
issued advisory opinions on the topic but has not approved new regulations on super PACs.
Discussion
Discussion
The FEC is responsible for administering civil enforcement of FECA and related federal election
law. The commission began considering a notice of proposed rulemaking (NPRM) expected to
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Super PACs in Federal Elections: Overview and Issues for Congress
address various Citizens United issues shortly after the Supreme Court
’'s January 2010 decision.
10
10 After disagreement throughout 2011 and two previous
deadlocked11deadlocked11 votes, in December 2011,
commissioners approved a notice of proposed rulemaking (NPRM) posing questions about some
aspects of what form post-Citizens United rules should take.
1212 Among other points, the agency
essentially asks how broadly new rules should define permissible corporate and union
independent expenditures and electioneering communications. It is unclear to what extent final
rules, if adopted, will address super PACs.
Despite the lack of amendments to federal law or campaign finance regulation, the FEC has
issued advisory opinions (AOs) that provided guidance on some super PAC questions.
1313 These
AOs responded to questions posed by members of the regulated community, as those governed by
campaign finance law are sometimes known, seeking clarification about how the commission
believed campaign finance regulation and law applied to specific situations applicable to super
PACs. Six AOs are particularly relevant for understanding how the FEC has interpreted the
Citizens United and SpeechNow decisions with respect to super PACs, as briefly summarized
below.
•
In July 2010, the FEC approved two related AOs in response to questions from
the Club for Growth (AO 2010-09) and Commonsense Ten (AO 2010-11).
14 In
14 In light of Citizens United
and SpeechNowand SpeechNow, both organizations sought to form PACs
that could solicit unlimited contributions to make independent expenditures (i.e.,
form super PACs). The commission determined that the organizations could do
so. In both AOs, the commission advised that while post-Citizens United rules
were being drafted, political committees intending to operate as super PACs
could supplement their statements of organization (FEC form 1) with letters
indicating their status.
1515 The major policy consequence of the Club for Growth
and Commonsense Ten AOs was to permit, based on Citizens United
and SpeechNow and
SpeechNow, super PACs to raise unlimited contributions supporting independent
expenditures.16
10
See, for example, Federal Election Commission, “FEC Statement on the Supreme Court’s Decision in Citizens
United v. FEC,” press release, February 5, 2010, http://www.fec.gov/press/press2010/20100205CitizensUnited.shtml.
11
The commission deadlocked in two 3-3 votes on draft NPRM documents 11-02, draft A, and 11-02-A, at the January
20, 2011, meeting. See Federal Election Commission, January 20, 2011, meeting minutes, pp. 4-5, http://www.fec.gov/
agenda/2011/approved2011_06.pdf. A vote to approve draft NPRM document 11-33 failed on a 2-4 vote at the June 15,
2011, commission meeting. At the same meeting, alternative draft NPRM document 11-33-A resulted in a deadlocked
3-3 vote. See Federal Election Commission, June 15, 2011, meeting minutes, pp. 3-4, http://www.fec.gov/agenda/2011/
approved2011_39.pdf. FECA requires that at least four commissioners vote affirmatively to approve NPRMs and final
rules. For additional discussion, see CRS Report RS22780, The Federal Election Commission (FEC) With Fewer than
Four Members: Overview of Policy Implications, by R. Sam Garrett.
12
Federal Election Commission, “Independent Expenditures and Electioneering Communications by Corporations and
Labor Organizations,” 248 Federal Register 80803, December 27, 2011.
13
AOs provide an opportunity to pose questions about how the commission interprets the applicability of FECA or
FEC regulations to a specific situation (e.g., a planned campaign expenditure). AOs apply only to the requester and
within specific circumstances, but can provide general guidance for those in similar situations. See 2 U.S.C. §437f.
14
The AOs are available from the FEC website at http://saos.nictusa.com/saos/searchao.
15
For sample letters, see Appendix A in AOs 2010-09 and 2010-11. A template is available at http://www.fec.gov/pdf/
forms/ie_only_letter.pdf.
16
AOs do not have the force of regulation or law. Although AOs can provide guidance on similar circumstances in
other settings, some may argue that AOs cannot, in and of themselves, create broad guidance about super PACs or
other topics.
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•
expenditures.16
In June 2011, the commission approved an AO affecting super PAC fundraising.
In the Majority PAC and House Majority PAC AO (AO 2011-12), the
commission determined that federal candidates and party officials could solicit
contributions for super PACs within limits.
1717 Specifically, the commission
advised that contributions solicited by federal candidates and national party
officials must be within the PAC contribution limits established in FECA (e.g.,
$5,000 annually for individual contributions).
1818 It is possible, however, that
federal candidates could attend fundraising events—but not solicit funds
themselves—at which unlimited amounts were solicited by other people.
•
In AO 2011-11, the commission responded to questions from comedian Stephen
Colbert. Colbert
’'s celebrity status generated national media attention surrounding
the request, which also raised substantive policy questions. The Colbert request
asked whether the comedian could promote his super PAC on his nightly
television program, The Colbert Report
.19.19 In particular, Colbert asked whether
discussing the super PAC on his show would constitute in-kind contributions
from Colbert Report distributor Viacom and related companies. An affirmative
answer would trigger FEC reporting requirements in which the value of the
airtime and production services would be disclosed as contributions from Viacom
to the super PAC. Colbert also asked whether these contributions would be
covered by the FEC
’s “'s "press exemption,
”" thereby avoiding reporting
requirements.
2020 In brief, the commission determined that coverage of the super
PAC and its activities aired on the Colbert Report would fall under the press
exemption and need not be reported to the FEC. If Viacom provided services
(e.g., producing commercials) referencing the super PAC for air in other settings,
however, the commission determined that those communications would be
reportable in-kind contributions.
2121 Viacom would also need to report costs
incurred to administer the super PAC.
22
•
22
On December 1, 2011, the FEC considered a request from super PAC American
Crossroads. In AO 2011-23, Crossroads sought permission to air broadcast ads
featuring candidates discussing policy issues. American Crossroads volunteered
that the planned ads would be
“"fully coordinated
”" with federal candidates ahead
of the 2012 elections, but also noted that they would not contain express
17
Majority PAC was formerly known as Commonsense Ten, the super PAC discussed above.
On limitations on contributions to PACs, see Table 1 in CRS Report R41542, The State of Campaign Finance
Policy: Recent Developments and Issues for Congress, by R. Sam Garrett. This section assumes a super PAC would
achieve multicandidate committee status. Multicandidate committees are those that have been registered with the FEC
(or, for Senate committees, the Secretary of the Senate) for at least six months; have received federal contributions
from more than 50 people; and (except for state parties) have made contributions to at least five federal candidates. See
11 C.F.R. §100.5(e)(3). In practice, most PACs attain multicandidate status automatically over time.
19
Colbert’s super PAC is popularly known as the Colbert Super PAC. It is registered with the FEC as Americans for a
Better Tomorrow, Tomorrow. For a scholarly discussion, see R. Sam Garrett, “Seriously Funny: Understanding
Campaign Finance Policy Through the Colbert Super PAC,” Saint Louis University Law Journal, vol. 56, no. 3 (Spring
2012), pp. 711-723.
20
On the press exemption, see 2 U.S.C. §431(9)(B)(i); 11 C.F.R. §100.73; 11 C.F.R. §100.132; and discussion in AO
2011-11, pp. 6-8.
21
See AO 2011-11, pp. 7-9. AOs are available from the FEC website at http://saos.nictusa.com/saos/searchao.
22
Ibid., p. 9.
18
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Super PACs in Federal Elections: Overview and Issues for Congress
of the 2012 elections, but also noted that they would not contain express advocacy calling for election or defeat of the candidates.
2323 In brief, the key
question in the AO was whether Crossroads could fund and air such
advertisements without running afoul of coordination restrictions designed to
ensure that goods or services of financial value are not provided to campaigns in
excess of federal contribution limits.
2424 (As a super PAC, Crossroads is prohibited
from making campaign contributions; coordinated expenditures would be
considered in-kind contributions.) Ultimately, the FEC was unable to reach a
resolution to the AO request. In brief, at the open meeting at which the AO was
considered, independent commissioner Stephen Walter and Democrats Cynthia
Bauerly and Ellen Weintraub disagreed with their Republican counterparts,
Caroline Hunter, Donald McGahn, and Matthew Petersen, about how FEC
regulations and FECA should apply to the request.
2525 As a result of the 3-3
deadlocked vote, the question of super PAC sponsorship of
“"issue ads
”" featuring
candidates appears to be unsettled. Although deadlocked votes are often
interpreted as not granting permission for a planned campaign activity, some
might also regard the deadlock as a failure to prohibit the activity. As a practical
matter, if the FEC is unable to reach agreement on approving or prohibiting the
conduct, it might also be unable to reach agreement on an enforcement action
against a super PAC that pursued the kind of advertising Crossroads proposed.
•
Also at its December 1, 2011, meeting, the FEC considered AO request 2011-21,
submitted by the Constitutional Conservatives Fund PAC (CCF). CCF is a
leadership
PAC26PAC26 affiliated with Senator Mike Lee. CCF and other leadership
PACs are not super PACs, although the CCF AO request is arguably relevant for
super PACs. Specifically, in AO request 2011-21, CCF sought permission to raise
unlimited funds for use in independent expenditures, as super PACs do. The FEC
held, in a 6-0 vote, that because CCF is affiliated with a federal candidate, the
PAC could not solicit unlimited contributions. To the extent that the CCF request
is relevant for super PACs, it suggests that leadership PACs or other committees
affiliated with federal candidates may not behave as super PACs.
To summarize, although the FEC has not yet issued rules regulating super PACs, AOs have
provided guidance relevant for some circumstances. Perhaps most notably, through the Club for
Growth (2010-09) and Commonsense Ten (2010-11) AOs, the commission confirmed that super
23
See AO request (AOR) 2011-23, p. 5. The AOR was filed, as is typical, in a letter from the requester’s counsel to the
FEC General Counsel. See Letter from Thomas Josefiak and Michael Bayes to Anthony Herman, General Counsel,
FEC, October 28, 2011, in the AO 2011-23 documents at at http://saos.nictusa.com/saos/searchao.
24
Coordination is discussed later in this report. On coordination and the three-part regulatory test for coordination, see,
respectively 2 U.S.C. §441a(a)(7)(B) and 11 C.F.R. §109.21.
25
Commissioners Bauerly and Weintraub issued a “statement of reasons” document explaining their rationale, as did
Commissioner Walther and the three Republican commissioners. See Cynthia L. Bauerly and Ellen L. Weintraub,
Statement on Advisory Opinion Request 2011-23 (American Crossroads), Federal Election Commission, Washington,
DC, December 1, 2011; Steven T. Walther, Advisory Opinion Request 2011-23 (American Crossraods): Statement of
Commissioner Steven T. Walther, Federal Election Commission, Washington, DC, December 1, 2011; and Caroline C.
Hunter, Donald T. McGahn, and Matthew S. Petersen, Advisory Opinion Request 2011-23 (American Crossraods):
Statement of Vice Chair Caroline C. Hunter and Commissioners Donald T. McGahn and Matthew S. Petersen, Federal
Election Commission, Washington, DC, December 1, 2011.
26
Leadership PACs are PACs affiliated with Members of Congress that provide an additional funding mechanism to
support colleagues’ campaigns. Although historically the purview of members of the House and Senate leadership,
many Members of Congress now have leadership PACs. Leadership PACs are separate from the candidate’s principal
campaign committee.
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Growth (2010-09) and Commonsense Ten (2010-11) AOs, the commission confirmed that super PACs could accept unlimited contributions and use those funds to make independent
expenditures. In AO 2011-12 (Majority PAC and House Majority PAC), the commission granted
permission for federal officeholders and party officials to solicit super PAC funds within the
limits established in FECA. The Colbert AO (2011-11) applies to the relatively unique situation of
a media personality discussing his super PAC on his television program. The Colbert AO may,
nonetheless, have broad implications in the future by presenting a model for other media
personalities and organizations to voice their support or opposition for political candidates, for
media corporations to have greater latitude to support personalities who do so, or both. The FEC
was unable to reach a consensus on American Crossroads
’' request (AO 2011-23) to air
“issue
ads”"issue ads" featuring candidates. Finally, in AO 2011-21, the commission determined that leadership
PACs could not engage in unlimited fundraising for independent expenditures, as super PACs do.
What Information Must Super PACs Disclose?
Brief Answer
Brief Answer
Super PACs must follow the same reporting requirements as traditional PACs. This includes filing
statements of
organization27organization27 and regular financial reports detailing most contributions and
expenditures.
Discussion
Discussion
In the Commonsense Ten AO, the FEC advised super PACs to meet the same reporting
obligations as PACs known as nonconnected committees (e.g., independent organizations that are
not affiliated with a corporation or labor union). These reports are filed with the
FEC28FEC28 and made
available for public inspection in person or on the commission
’'s website.
Super PACs and other political committees must
regularly29regularly29 file reports with the
FEC30
FEC30 summarizing, among other things,
•
total receipts and disbursements;
•
the name, address, occupation, and
employer31employer31 of those who contribute more than
$200 in unique or aggregate contributions per year;
27
This is FEC form 1. Essentially, it provides the FEC with information about how to contact the campaign and
identifies the treasurer.
28
Political committees devoted solely to Senate activities file reports with the Secretary of the Senate, who transmits
them to the FEC for public positing. In theory, if a super PAC were devoted solely to affecting Senate campaigns, it is
possible the super PAC would file with the Secretary rather than with the FEC. Nonetheless, the information would be
transmitted to the FEC.
29
Reporting typically occurs quarterly. Pre- and post-election reports must also be filed. Non-candidate committees
may also file monthly reports. See, for example, 2 U.S.C. §434 and the FEC’s Campaign Guide series for additional
discussion of reporting requirements.
30
As noted previously, unlike other political committees, Senate political committees (e.g., a Senator’s principal
campaign committee) file reports with the Secretary of the Senate, who transmits them to the FEC. See 2 U.S.C.
§432(g).
31
The occupation and employer requirements apply to contributions from individuals.
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Super PACs in Federal Elections: Overview and Issues for Congress
•
$200 in unique or aggregate contributions per year;
the name and address of the recipient of disbursements exceeding $200;
32 and
•
32 and
the purpose of the disbursement.
33
33Reporting timetables for traditional PACs, which appear to apply to super PACs, depend on
whether the PAC
’'s activity occurs during an election year or non-election year.
•
During election years, PACs may choose between filing monthly or quarterly
reports. They also file pre- and post-general election reports and year-end
reports.
34
•
34
During non-election years, PACs file FEC reports monthly or
“"semi-annually
”" to
cover two six-month periods. The latter include two periods: (1)
“"mid-year
”
" reports for January 1-June 30; and (2)
“"year-end
”" reports for July 1-December
31.35
31.35 Super PACs also have to report their IEs.
3636 IEs are reported separately from the regular financial
reports discussed above. Among other requirements,
•
independent expenditures aggregating at least $10,000 must be reported to the
FEC within 48 hours; 24-hour reports for independent expenditures of at least
$1,000 must be made during periods immediately preceding elections;
37 and
•
37 and
independent expenditure reports must include the name of the candidate in
question and whether the expenditure supported or opposed the candidate.
38
38The name, address, occupation, and employer for those who contributed at least $200 to the super
PAC for IEs would be included in the regular financial reports discussed above, but donor
information is not contained in the IE reports themselves. In addition, as the
“"Is Super PAC
Activity Sufficiently Transparent?
”" section discusses later in this report, the original source of
some contributions to super PACs can be concealed (either intentionally or coincidentally) by
routing the funds through an intermediary.
32
FECA contains some exceptions. For example, all disbursements used to make contributions to another political
committee must be itemized, regardless of amount. See 2 U.S.C. §434(b)(4).
33
FEC policy guidance has stated that “when considered along with the identity of the disbursement recipient, must be
sufficiently specific to make the purpose of the disbursement clear.” In general, however, political committees have
broad leeway in describing the purpose of disbursements. For example, the commission has noted that generic terms
such as “administrative expenses” are inadequate, but “salary” is sufficient. The quoted material and additional
discussion appears in Federal Election Commission, “Statement of Policy: Purpose of Disbursement,” 72 Federal
Register 887-889, January 9, 2007.
34
Quarterly reports are due to the FEC on April 15, July 15, and October 15. The final quarterly report is due January
31 of the next year. Monthly reports are due to the commission 20 days after the end of the previous month. The yearend report is due by January 31 of the year after the election. Pre-election reports summarizing activity for the final
weeks of an election period must be filed with the FEC 12 days before the election. Monthly or quarterly reports are not
required if their due dates fall near an otherwise required pre-election report. Post-general reports must be filed 30 days
after the election; post-primary reports are not required. Additional requirements apply to special elections. See 11
C.F.R. §104.5(c)(1).
35
The reports are due to the FEC by July 31 and January 31 respectively. See 11 C.F.R. §104.5(c)(2).
36
Separate reporting obligations apply to electioneering communications.
37
See, for example, 2 U.S.C. §434(g).
38
2 U.S.C. §434(g)(3)(B).
Congressional Research Service
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Super PACs in Federal Elections: Overview and Issues for Congress
Overall, What Did Super PACs Raise and Spend in
the 2010 Federal Elections?
Brief Answer
routing the funds through an intermediary.
Overall, What Did Super PACs Raise and Spend in the 2010 and 2012 Federal Elections?
Brief Answer
Super PAC activity increased substantially between 2010 and 2012, in terms of both the number of super PACs that were active in the elections and their financial activity. Approximately 80 organizations quickly formed in response to the 2010 Citizens United
and
and SpeechNow rulings. These first super PACs spent a total of approximately $90.4 million, more
than $60 million of which was spent on IEs advocating for or against candidates.
3939 Just 10 super
PACs accounted for almost 75% of all super PAC spending in 2010.
40
Discussion
To assess where and how super PACs became involved in House and Senate contests, CRS
analyzed super PAC reports filed with the FEC. This section emphasizes total fundraising and
spending reported to the commission for the entire 2010 election cycle. The next section explores
activities in individual races and relies on those data most devoted to electing or defeating
candidates—IE reports. The Appendix provides additional information about the methodology
used to gather the data and conduct the analysis.
40 In 2012, although more than 800 super PACs registered with the FEC, only about 450 of those groups reported raising or spending funds.41 For the 2012 cycle, super PACs reported raising a total of $826.6 million and spending a total of $799.2 million.42
Discussion
To assess where and how super PACs became involved in federal elections, CRS
analyzed super PAC reports filed with the FEC for the 2010 and 2012 cycles. The Appendix provides additional information about the methodology used to gather the data and conduct the analysis.
During the 2010 election cycle, 79 groups registered as super PACs spent a total of approximately
$90.4 million. This sum is perhaps notable not only for its size, but also because most of these
organizations did not operate until the summer of 2010.
4143 As Figure 1 shows, super PAC
resources in 2010 were highly skewed, meaning that a relatively small number of groups
accounted for a large amount of financial activity—both individually and as a proportion of all
super PAC activity.
39
Remaining amounts were apparently spent on items such as administrative expenses and non-federal races. IE totals
range from approximately $61 million to approximately $65 million depending on whether one analyzes summary data
provided by the FEC or sums individual IE filings. As discussed elsewhere in this report, various data sources and
different filing schedules often yield slightly different numbers.
40
The FEC provided CRS with data on spending by individual committees. The text in this section is based on CRS
analysis of those data, including aggregating the totals and calculating percentages listed in the text.
41
The FEC provided CRS with data on spending by individual committees. CRS aggregated the totals listed in the text.
In the absence of additional regulations concerning registration for super PACs, it is not clear that all organizations are
reflected in the figures in the text.
Congressional Research Service
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Super PACs in Federal Elections: Overview and Issues for Congress
Figure 1.Top 10 Super PACs by Receipts and Disbursements, 2010
Source: CRS figure and analysis of data provided by the Federal Election Commission.
Notes: Amounts in the figure refer to total receipts and disbursements as reported to the FEC, not just
independent expenditures.
Despite the fact that almost 80 super PACs registered with the FEC in 2010, just 10 accounted for
almost 75% of these groups’ total spending. Specifically, the 10-highest-spending super PACs in
2010 collectively spent approximately $66.8 million, or 74% of the approximately $90 million
super PACs spent in total.42
A closer look reveals that it was not really 10 super PACs, but one, that spent a comparatively
large amount in 2010. Specifically, American Crossroads single-handedly spent $25.8 million,
representing 28.7% of all super PAC spending. In other words, one super PAC (widely perceived
as supporting Republicans) accounted for about one-third of all super PAC spending in 2010.
American Crossroads’ activity was so substantial that it spent more than three times the amount
of second-ranked spender America’s Families First Action Fund (which identifies as a Democratic
organization).
42
CRS calculated these totals and percentages based on FEC super PAC data for 2010. All figures are rounded
compared with the original data. As noted previously, this section is based on total expenditures, not IEs.
Congressional Research Service
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Super PACs in Federal Elections: Overview and Issues for Congress
What Did Super PACs Spend Supporting or
Opposing Congressional Candidates in 2010?
Brief Answer
Super PACs spent approximately $65.8 million on IEs directly supporting or opposing federal
candidates. Most of that spending was far more likely to oppose candidates than to support
candidates. Specifically, more than 75% of super PAC IE spending in both House and Senate
contests opposed candidates. Although about half of IE spending in House races opposed
Republicans, about half of IE spending in Senate contests opposed Democrats.
Discussion
As noted above, super PACs spent approximately $90.4 million in 2010 overall. Their
independent expenditures—those expenses devoted to explicitly calling for election or defeat of a
federal candidate and perhaps the best indicator of super PACs’ influence in elections—accounted
for about 70% of their spending.
Table 2 shows that almost 25 super PACs spent at least $250,000 in IEs in 2010, but relatively
few groups dominated—the same kind of divide among groups that appeared in total spending
discussed above.
Table 2. Super PACs that Made At Least $250,000
in Independent Expenditures in 2010
Committee Name
AMERICAN CROSSROADS
Total Independent Expenditures
$21,652,779
AMERICA’S FAMILIES FIRST ACTION FUND
$6,018,975
CLUB FOR GROWTH ACTION
$4,946,473
NEA ADVOCACY FUND
$4,200,000
WOMEN VOTE!
$3,614,066
COMMONSENSE TEN
$3,262,136
OUR FUTURE OHIO PAC
$3,158,139
SUPER PAC FOR AMERICA
$1,830,492
ALASKANS STANDING TOGETHER
$1,643,890
NEW PROSPERITY FOUNDATION; THE
$1,542,449
FIRST AMENDMENT ALLIANCE
$1,486,961
PATRIOT MAJORITY PAC
$1,239,955
ENDING SPENDING FUND
$1,150,000
NATIONAL ASSOCIATION OF REALTORS CONGRESSIONAL FUND
$1,097,266
MAJORITY ACTION PAC
$986,606
WORKING FOR US POLITICAL ACTION COMMITTEE INC
$881,558
Congressional Research Service
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Super PACs in Federal Elections: Overview and Issues for Congress
Committee Name
Total Independent Expenditures
LEAGUE OF CONSERVATION VOTERS VICTORY FUND
$822,266
CONCERNED TAXPAYERS OF AMERICA
$789,452
AMERICAN WORKER INC, THE
$723,063
UNITED MINE WORKERS OF AMERICA POWER PAC
$330,830
2010 LEADERSHIP COUNCIL
$267,676
CITIZENS FOR A WORKING AMERICA PAC
$254,779
FLORIDA IS NOT FOR SALE
$250,472
Source: CRS analysis of data provided by the Federal Election Commission.
Notes: Committee names appear as listed in the FEC data. Data are from 2010 year-end reports. All figures are
rounded compared with the original data. These figures could be affected by revised future filings or duplicate
filings. The latter generally does not significantly affect the data overall.
A financial hierarchy of groups becomes more obvious when examining higher spending levels.
Of 79 registered super PACs, only 14 (17.7%) made more than $1 million in IEs. As with the
overall receipt and disbursement data, American Crossroads far outpaced all other super PACs,
accounting for $21.7 million in IEs and approximately one-third (32.7%) of the total. America’s
Families First Action Fund again ranked second, having made $6 million in IEs (or 9.1% of the
total).
Differences by Chamber and Party
Table 3 shows how super PACs chose to prioritize their spending on House versus Senate
contests. Of the approximately $20 million super PACs spent on 2010 House IEs, almost half
(46.2%) went toward opposing Republicans. Further, 60.5% (approximately $12 million) favored
Democrats by either opposing Republicans or supporting Democrats.43
Table 3. Overview of Campaigns Affected by 2010 Super PAC
Independent Expenditures
Chamber
Party
Support or
Oppose
Total Spent
HOUSE
DEMOCRATIC
OPPOSE
$6,062,723
SUPPORT
$2,869,324
OPPOSE
$9,239,555
SUPPORT
$1,813,919
OPPOSE
$20,525,502
SUPPORT
$1,246,055
OPPOSE
$11,257,357
SUPPORT
$7,060,514
REPUBLICAN
SENATE
DEMOCRATIC
REPUBLICAN
43
It should be noted, however, that some IEs ran in primary contests.
Congressional Research Service
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Super PACs in Federal Elections: Overview and Issues for Congress
Source: CRS analysis of 2010 Federal Election Commission independent expenditure reports.
Notes: Information in the table is as reported in FEC independent expenditure reports. CRS calculated
information in the Total Spent column. The table excludes $241,298 in independent expenditures made in
opposition to a third-party House candidate (CO-4); and $752,100 made in opposition to a Florida Senate
candidate whose party affiliation was listed as none in the FEC data.
Figure 2 and Figure 3 show that Super PAC spending in Senate races reflected essentially the
opposite pattern found in spending on House races. Overall spending on IEs was also far higher
for Senate races than for House races. Specifically, of approximately $40 million spent on IEs for
Senate contests, 51.2% (approximately $20.5 million) opposed Democrats. An additional 17.6%
(approximately $7 million) supported Republicans.
To summarize, in 2010 super PACs spent about twice as much on Senate IEs as they did on
House IEs. Slightly more than 60% of super PAC IE spending favored Democratic House
candidates. In Senate races, almost 70% favored Republicans.
Figure 2. Support and Opposition for House Candidates
in 2010 Super PAC Independent Expenditures
Supported
Republicans
9.1%
Opposed
Republicans
46.2%
Opposed
Democrats
30.3%
Supported
Democrats
14.4%
Source: CRS figure and analysis of Federal Election Commission independent expenditure reports.
Notes: Support and opposition labels are taken from independent expenditure reports. Percentages are based
on dollar amounts spent, not number of expenditures. The figure excludes IEs made in opposition to a thirdparty House candidate (CO-4).
Congressional Research Service
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Super PACs in Federal Elections: Overview and Issues for Congress
Figure 3. Support and Opposition for Senate Candidates
in 2010 Super PAC Independent Expenditures
Supported
Republicans
17.6%
Opposed
Democrats
51.2%
Opposed
Republicans
28.1%
Supported
Democrats
3.1%
Source: CRS figure and analysis of Federal Election Commission independent expenditure reports.
Notes: Support and opposition labels are taken from independent expenditure reports. Percentages are based
on dollar amounts spent, not number of expenditures. The figure excludes IEs made in opposition to a Florida
Senate candidate whose party affiliation was listed as none in the FEC data.
Most Super PAC IE Spending Targeted Relatively Few Races
The preceding section shows that, overall, most super PAC spending occurred in Senate contests,
and that a majority of that spending favored Republicans. Examining total spending on IEs in
individual House and Senate contests provides more detail about where super PACs chose to
become involved. Super PACs reported making IEs in 111 different House and Senate contests.
Total super PAC IE spending in those races ranged from just $1,100 (in a Kentucky House race)
to more than $10 million in the Colorado Senate contest.44
Not surprisingly, when super PACs chose to make IEs in 2010, they targeted their efforts
carefully. In fact, the $10.1 million super PACs spent on IEs in just one Senate race—in
Colorado—accounted for 16.5% of all super PAC IEs spending in 2010. Of the approximately
$60 million super PACs spent in IEs overall in 2010, almost 60% ($37.4 million) were in the 10
Senate contests in which super PACs invested most heavily, as shown in the left side of Figure
4.45
44
This section only shows data in the figures and table for spending in the 25 contests in which super PACs spent the
most on IEs. The underlying CRS analysis is based on all super PAC IE spending.
45
These are the CO Senate through AK Senate entries on the left side of the figure.
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Super PACs in Federal Elections: Overview and Issues for Congress
Figure 4. The 25 Congressional Races in 2010 in Which Super PACs
Spent the Most on Independent Expenditures
Source: CRS figure and analysis of Federal Election Commission independent expenditure reports.
As Table 4 shows, these were the 10 contests in which super PACs spent the most on IEs in 2010.
When expanding the list to include the 25 races in which super PACs spent the most on IEs, the
super PAC presence in House races becomes more apparent. Specifically, super PACs made IEs
in 12 House races compared with 13 Senate contests.
In general, only a few super PACs chose to make IEs in each of the races shown in Table 4.
Although not displayed in the table, the number of super PACs making IEs in these races ranged
from one to eight groups per race, with a median of three groups per race. In other words, a small
number of super PACs might be a major force in particular races.
Table 4. The 25 Congressional Races in 2010 in Which Super PACs
Spent the Most on Independent Expenditures
Races
Race
Total
Candidate
Spending
Super PAC Spending on Independent Expenditures
Total Spent on
Super PAC IEs
Favoring
Democrats
Favoring
Republicans
As a % of Total
Candidate
Spending
CO Senate
$24,768,060
$10,095,905
26.1%
73.9%
40.8%
NV Senate
$58,119,719
$5,240,671
38.1%
61.9%
9.0%
WA Senate
$26,380,159
$4,388,706
74.6%
25.4%
16.6%
PA Senate
$39,800,549
$3,371,370
19.3%
80.7%
8.5%
MO Senate
$22,589,367
$3,281,984
18.2%
81.8%
14.5%
IL Senate
$29,097,909
$2,853,403
24.4%
75.6%
9.8%
FL Senate*
$79,303,388
$2,730,132
3.5%
69.0%
3.4%
KY Senate
$18,947,679
$2,263,445
24.9%
75.1%
11.9%
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Super PACs in Federal Elections: Overview and Issues for Congress
Races
Race
Total
Candidate
Spending
Super PAC Spending on Independent Expenditures
Total Spent on
Super PAC IEs
Favoring
Democrats
Favoring
Republicans
As a % of Total
Candidate
Spending
CA Senate
$34,590,632
$1,572,560
99.1%
0.9%
4.5%
AK Senate
$6,880,323
$1,570,322
0.0%
100.0%
22.8%
CO-4*
$6,272,648
$912,504
73.6%
0.0%
14.5%
WV Senate
$6,902,111
$900,374
36.2%
63.8%
13.0%
NH-2
$5,423,531
$849,400
9.0%
91.0%
15.7%
OH Senate
$14,322,287
$829,605
1.1%
98.9%
5.8%
CA-3
$5,553,590
$738,601
2.9%
97.1%
13.3%
NH Senate
$19,501,021
$730,434
0.0%
100.0%
3.7%
CO-3
$3,894,472
$706,318
93.6%
6.4%
18.1%
VA-5
$7,512,617
$648,809
100.0%
0.0%
8.6%
OR-4
$2,907,661
$628,115
4.9%
95.1%
21.6%
NV-3
$4,569,261
$620,136
89.1%
10.9%
13.6%
MD-1
$5,571,675
$592,278
67.5%
32.5%
10.6%
FL-2
$5,755,620
$579,964
78.5%
21.5%
10.1%
NY-22
$1,758,216
$533,584
0.0%
100.0%
30.3%
WI-7
$3,647,216
$526,553
95.3%
4.7%
14.4%
OH-13
$10,113,710
$521,442
100.0%
0.0%
5.2%
Source: CRS analysis of Federal Election Commission independent expenditure reports (super PAC data); and
CRS analysis of FEC summaries of candidate spending at http://www.fec.gov/disclosurehs/
hsnational.do;jsessionid=0B282B09E92062FFA10932A87601C4CF.worker1.
Notes: CRS created the Favoring Democrats column by calculating the percentage of super PAC IEs that were
reported as supporting Democrats or opposing Republicans; the Favoring Republicans column is the percentage of
super PAC IEs reported as supporting Republicans or opposing Democrats.
*The table excludes $752,100 made in opposition to a Florida Senate candidate whose party affiliation was listed
as none in the FEC data. It also excludes $241,298 in independent expenditures made in opposition to a thirdparty House candidate in CO-4.
Super PAC IE Spending versus Candidate Spending
One concern surrounding super PACs has been the possibility that their ability to spend unlimited
sums could overwhelm candidates. As noted previously, a detailed understanding of how super
PACs affected individual races or candidates would require political analysis that is beyond the
scope of this report. In general, however, super PAC spending did not overwhelm candidate
spending, even in the 25 races in which super PACs spent the most on IEs.
As Table 4 shows, even in the Colorado Senate race, where super PACs invested most, super
PAC IEs did not eclipse candidate spending. Super PACs did, however, spend more than 40% as
much as all candidates. Notably, the approximately $10 million super PACs spent came from just
seven groups. As the table shows, however, the Colorado case was atypical. In most races, super
PACs spent less than 20% as much as candidates.
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Super PACs in Federal Elections: Overview and Issues for Congress
The data also show that, in most races, super PAC spending on IEs heavily favored candidates
from a single political party. In fact, in 12 of the 25 races shown in the table, 90% or more of IE
spending favored one party over the other. In general, spending favored Republican candidates in
the Senate and Democratic candidates in the House. Overall, super PAC IE spending in the 25
races in which super PACs invested most heavily favored Republican candidates (15 of 25 races).
In assessing the extent to which IEs favored one party over another, it is important to note that IE
reports indicate only whether a candidate was supported or opposed, not whether one party was
“favored” over another. As the Appendix explains, CRS created the favored party variable to
measure how the cumulative effect of both opposing and supporting messages might affect
candidates overall. The measure assumes that, for example, an IE opposing a Republican
candidate advantages the Democratic opponent. This would not be so in all cases (such as in IEs
aired during primary contests), but the approach might provide a more realistic assessment of the
effects of IEs than simply examining support and opposition reports in isolation. Alternative
methodologies might yield different results.
What Have Super PACs Raised and Spent So Far in
2012?
Brief Answer
Super PACs are playing an active role in the 2012 election cycle, especially in the Republican
presidential primary campaign. The number of registered super PACs more than tripled between
2010 and early 2012—from approximately 80 to approximately 250 groups that have indicated at
least some financial activity as of this writing. In 2011, among groups that reported raising and
spending funds, super PACs raised approximately $98.6 million and spent approximately $38.5
million.46 By early September 2012, approximately 600 super PACs were registered with the
FEC. They reported spending approximately $236 million and had raised more than $340 million.
Discussion
Super PACs continued to grow in number and financial prominence following the 2010 election
cycle. As during the 2010 cycle, it appears that a relatively small number of groups will again
account for the majority of financial activity.
Even though the number of super PACs grew sharply—from 80 to approximately 600 between
2010 and 2012 (thus far)—many were not actively involved in fundraising or spending. In fact,
only 130-140 super PACs reported raising or spending more than $0 during 2011. Most that did
exhibited relatively modest activity; these super PACs raised a median of approximately $31,000
and spent a median of approximately $19,000.
46
Unless otherwise noted, information in this section comes from CRS analysis of year-end 2011 super PAC reports
filed with the FEC. These figures include all activity, not only IEs. The analysis is based only on groups that reported
raising or spending more than $0 during 2011.
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Some groups, however, were substantially more active. Overall, during 2011—the first year of
the 2012 cycle—10 super PACs accounted for 72% of all super PAC spending. In addition, as
Figure 5 below shows, just 16 super PACs reported raising or spending at least $1 million in
2011. Super PAC Restore Our Future, formed to support Governor Mitt Romney’s presidential
campaign, topped super PAC fundraising at $30.2 million. Perhaps also notably, just as American
Crossroads dominated super PAC activity in 2010, Restore Our Future was single-handedly
responsible for about one-third (30.6%) of 2011 super PAC fundraising. The group also led super
PAC spending at $6.6 million. At year’s end, almost $24 million remained in the bank and ready
for 2012 spending. The most prominent Democratic super PAC, Priorities USA Action, reported
raising and spending far less—$4.4 million and $2.9 million respectively. The Democratic group
had $1.6 million in cash on hand.47
Figure 5. Super PACs Raising or Spending At Least $1 Million in 2011
Source: CRS figure and analysis based on 2011 year-end reports filed with the FEC.
47
Ibid.
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Super PACs in Federal Elections: Overview and Issues for Congress
Notes: Analysis is based on 2011 data contained in the 2012 cycle “Committee Summary File,”
http://www.fec.gov/data/, as of February 2012. The analysis includes only those super PACs that reported raising
or spending more than $0 during 2011. Amended filings or alternative analyses may yield different results.
Also potentially of note is the fact that some donors have provided large contributions to super
PACs. In some cases, these include contributions that are permitted under Citizens United, but
would be prohibited (because of the amount or source) as a contribution given directly to a
campaign. For example, pro-Romney super PAC Restore Our Future received contributions from
companies associated with cleaning-products firm Melaleuca, Inc. On August 5, 2011, Restore
Our Future reported receiving four $250,000 contributions from Melaleuca, Inc.; Melaleuca of
Asia Ltd. Co.; Melaleuca of Japan, Inc.; and Melaleuca of Southeast Asia, Inc. (for a total of $1
million).48 Similarly, Democratic super PAC Priorities USA Action reported receiving $1 million
in 2011 from union political action committee SEIU COPE. Both super PACs—and others—also
reported large individual contributions.49
The distinction among groups continued as the 2012 elections neared. Analysis of 2012 super
PAC activity reported to the FEC as of early September 2012 (reflecting filings through July 31)
reveals the following:
•
Super PACs reported spending approximately $236 million and raising more than
$340 million.50
•
As occurred during the 2010 election cycle and 2011 calendar year, a relatively
small number of super PACs continued to dominate.
•
Thirty-six super PACs raised or spent at least $1 million.
•
These 36 super PACs accounted for the vast majority of all 2012-cycle super
PAC activity. Specifically, they accounted for 90.8% of the $340.8 million super
PACs raised, and 90.7% of the $236.6 million spent.
•
Republican-oriented groups had a substantial advantage over Democraticoriented groups. Two particularly prominent groups—Restore Our Future and
American Crossroads—reported raising more than $136 million and spending
more than $87 million.
•
Only 28 super PACs spent more than $1 million during the cycle, and only five
spent more than $10 million.
Table 5 below summarizes financial activity of the 10 super PACs reporting the largest receipts
and expenditures for 2012 through July 31 (the latest data available as of early September 2012).
The table reports total disbursements rather than only IEs. Therefore, it is important to note that
although these entities are raising and spending the most overall, other super PACs might have
more direct impact on the election through higher spending on IEs that call for election or defeat
of particular candidates.
48
This information appears in Restore Our Future’s amended 2011 year-end report (FEC form 3X), Schedule A, image
page numbers 12950442336-12950442337.
49
This information appears in Priorities USA Action’s 2011 year-end report (FEC form 3X), Schedule A, image page
number 12970340988.
50
Information in this section is based on CRS analysis of super PAC filings contained in the FEC Committee Summary
File.
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Table 5. The 10 Super PACs Reporting the Most Receipts and Disbursements for the
2012 Election Cycle
Committee Name
Total Receipts
Total Disbursements
RESTORE OUR FUTURE, INC.
$89,654,176
$69,149,391
AMERICAN CROSSROADS
$47,340,973
$18,616,910
PRIORITIES USA ACTION
$25,502,720
$21,276,856
WINNING OUR FUTURE
$23,921,215
$23,492,366
CLUB FOR GROWTH ACTION
$13,252,085
$10,916,818
MAJORITY PAC
$12,053,683
$8,770,327
HOUSE MAJORITY PAC
$9,593,781
$5,024,644
AMERICAN BRIDGE 21ST CENTURY
$8,633,258
$6,225,368
WORKERS’ VOICE
$7,106,630
$5,230,653
CONGRESSIONAL LEADERSHIP FUND
$6,511,401
$223,723
Source: CRS analysis of super PAC data in the FEC Committee Summary File.
Notes: Committee names appear as listed in the FEC data accessed September 2012, primarily reflecting filings
as of July 31, 2012. All figures are rounded compared with the original data. These figures could be affected by
revised future filings or duplicate filings. Total disbursements include all expenditures, not only independent
expenditures.
What Major Super PAC Issues Might Be on
the Horizon?
Brief Answer
Because much about super PACs remains unknown, Congress might wish to conduct oversight or
pursue legislative activity to clarify these new groups’ place in federal elections. Super PAC
activity might also be relevant for congressional oversight of the FEC as that agency continues to
consider post-Citizens United rulemakings and reporting requirements. Looking ahead, questions
about super PAC relationships with other organizations (particularly the issues of coordination
and contribution limits), transparency, and their effect on the 2012 elections may be of particular
interest.
Discussion
Super PACs address some of the most prominent and divisive issues in campaign finance policy.
Most attention to super PACs is likely to emphasize their financial influence in elections, as is
typically the case when new forces emerge on the campaign finance scene. Underlying that
financial activity is law, regulation, or situational guidance (e.g., advisory opinions)—or the lack
thereof—that shape how super PACs operate and are understood.
Congressional Research Service
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Super PACs in Federal Elections: Overview and Issues for Congress
Policy Approaches
super PAC activity.
Figure 1. Top 10 Super PACs by Total Receipts and Disbursements, 2010 and 2012
|
Source: CRS figure and analysis of super PAC data in the FEC Committee Summary File.
Notes: Amounts in the figure refer to total receipts and disbursements as reported to the FEC, not just independent expenditures.
|
In 2012, super PAC financial activity remained skewed, but overall fundraising and spending increased sharply. For example, although all super PACs spent less than $100 million in 2010, two Republican super PACs alone—Restore Our Future and American Crossroads—each spent more than $100 million in 2012. These two groups were the only super PACs that raised or spent more than $100 million in 2012. The most financially active Democratic super PAC, Priorities USA Action, spent approximately $75 million. All other super PACs individually raised and spent less than $50 million.
Even though the number of super PACs grew sharply—from 80 to more than 800 between 2010 and 2012—many were not actively involved in fundraising or spending. In fact, only about 450 super PACs reported raising or spending any money during the 2012 cycle.44 Most that did exhibited relatively modest activity; these super PACs raised a median of approximately $53,000 and spent a median of approximately $57,000. 45
Nonetheless, dozens of super PACs raised or spent millions of dollars. Specifically, 75 super PACs reported raising or spending a total of at least $1 million; 27 raised or spent at least $5 million.46 Just 16 super PACs reported raising or spending at least $10 million during the 2012 cycle. A small number of super PACs also dominated fundraising and spending in 2012, albeit to a slightly smaller degree than in 2010. Whereas 10 super PACs accounted for about 75% of super PAC fundraising and spending in 2010, 10 super PACs in 2012 collectively raised approximately $531.8 million and spent approximately $522.7 million, representing about 65% of all super PAC spending.
Table 2 below summarizes financial activity of the 10 super PACs reporting the largest receipts and expenditures for 2012. The table reports total disbursements rather than only IEs. Therefore, it is important to note that although these entities raised and spent the most overall, other super PACs might have more direct impact on the election through higher spending on IEs that call for election or defeat of particular candidates.
Table 2. The 10 Super PACs Reporting the Most Receipts and Disbursements for the 2012 Election Cycle
|
Committee Name
|
Total Receipts
|
Total Disbursements
|
|
RESTORE OUR FUTURE, INC.
|
$153,741,731
|
$153,316,373
|
|
AMERICAN CROSSROADS
|
$117,472,407
|
$117,044,325
|
|
PRIORITIES USA ACTION
|
$79,050,419
|
$75,333,806
|
|
MAJORITY PAC
|
$42,121,541
|
$42,117,050
|
|
HOUSE MAJORITY PAC
|
$35,844,951
|
$35,689,886
|
|
WINNING OUR FUTURE
|
$23,921,705
|
$23,861,421
|
|
FREEDOMWORKS FOR AMERICA
|
$23,453,198
|
$22,621,967
|
|
WORKERS' VOICE
|
$21,855,151
|
$21,687,667
|
|
CLUB FOR GROWTH ACTION
|
$18,253,913
|
$17,931,937
|
|
SERVICE EMPLOYEES INTERNATIONAL UNION PEA-FEDERAL
|
$16,264,036
|
$13,079,983
|
Source: CRS analysis of super PAC data in the FEC Committee Summary File.
Notes: Committee names appear as listed in the FEC data accessed March 2013. All figures are rounded compared with the original data. These figures could be affected by future amended filings. Total disbursements include all expenditures, not only independent expenditures. The table relies on combined receipt and disbursement data. Separate analyses of disbursement and spending data could yield different results.
What Did Super PACs Spend Supporting or Opposing Federal Candidates in 2010 and 2012?
Brief Answer
Super PACs spent approximately $65.8 million on IEs directly supporting or opposing federal candidates in 2010. That amount increased almost tenfold in 2012, when super PACs spent $620.9 million in IEs supporting and opposing House, Senate, and presidential candidates.47 Most of that spending was far more likely to oppose candidates than to support candidates. Some of the increase in spending would be expected during a presidential election year, but the rapid growth in super PAC activity during just two election cycles suggests that the groups are solidifying their presence in American elections. As the data below show, super PACs were active across federal elections.
Discussion
As noted above, super PACs spent approximately $90.4 million in 2010 overall and almost $800 million overall in 2012. Their independent expenditures—those expenses devoted to calling explicitly for election or defeat of a federal candidate and perhaps the best indicator of super PACs' influence in elections—accounted for 70%-80% of their spending during both election cycles. Table 3 below shows how super PACs chose to prioritize their spending on House, Senate, and presidential contests in 2012.
Table 3. Overview of 2012 Super PAC Independent Expenditures by Type of Race and Party
|
Chamber
|
Party
|
Support or Oppose
|
Total IE Spending
|
|
HOUSE
|
DEMOCRATIC
|
OPPOSE
|
$26,473,473
|
SUPPORT
|
$16,693,098
|
REPUBLICAN
|
OPPOSE
|
$42,988,145
|
SUPPORT
|
$16,875,654
|
|
SENATE
|
DEMOCRATIC
|
OPPOSE
|
$34,313,099
|
SUPPORT
|
$12,188,177
|
REPUBLICAN
|
OPPOSE
|
$63,514,924
|
SUPPORT
|
$24,033,595
|
|
PRESIDENTIAL
|
DEMOCRATIC
|
OPPOSE
|
$189,330,326
|
SUPPORT
|
$18,086,773
|
REPUBLICAN
|
OPPOSE
|
$118,289,181
|
SUPPORT
|
$58,064,074
|
Source: CRS analysis of 2012 Federal Election Commission independent expenditure reports.
Notes: Information in the table is as reported in FEC independent expenditure reports. CRS calculated the information in the Total IE Spending column. The table excludes third-party and independent candidates.
When considering super PAC spending on IEs in 2010 and 2012, readers might find percentages more illustrative than raw spending totals.48 Figure 2 below displays the percentage of IE spending favoring and opposing candidates across various types of races in 2010 and 2012.49 As the figure shows, there are both similarities and differences between 2010 and 2012 super PAC IE spending across chambers and parties.
Figure 2. Support and Opposition for Federal Candidates in 2010 and 2012 Super PAC Independent Expenditures
|
Source: CRS figure and analysis of Federal Election Commission independent expenditure reports.
Notes: Support and opposition labels are taken from independent expenditure reports. Percentages are based on dollar amounts spent, not number of expenditures. The figure excludes IEs made supporting and opposing independent and third-party candidates.
|
Although overall spending increased sharply, as discussed previously, the ratio of support-and-opposition spending in House-contest IEs among super PACs was roughly consistent between 2010 and 2012. A large plurality of the spending, approximately 46% of IE spending in 2010 and 42% of IE spending in 2012, opposed Republican candidates, compared with about 26%-30% of IEs that opposed Democrats. In Senate contests, a greater proportion of spending favored Democrats in 2012 than in 2010. Specifically, less than one-third of super PAC IE spending in 2010 Senate contests favored Democrats by either opposing Republicans (28.1%) or supporting Democrats (3.1%). In 2012, however, more than half of super PAC IE spending favored Democrats by opposing Republicans (47.4%) or supporting Democrats (9.1%). At the presidential level, almost two-thirds of 2012 super PAC IEs favored Republicans by either supporting Republicans (15.1%) or opposing Democrats (49.3%). (Super PACs did not exist in the 2008 presidential cycle.)
Most Super PAC IE Spending Targeted Relatively Few Races
As the preceding section shows, most 2012 super PAC spending occurred in the presidential race. Examining activity in House and Senate races may be especially relevant for Congress. As with other data discussed throughout this report, super PACs spent more on IEs affecting House and Senate races in 2012 than in 2010. That spending also affected more races. Figure 3 below shows the 25 House and Senate races from 2010 and 2012 in which super PACs spent the most on IEs.
Total super PAC IE spending in 2010 races ranged from just $1,100 (in a Kentucky House race) to more than $10 million in the Colorado Senate contest. In 2012, super PAC spending ranged from less than $1,000 in a few House races to $14.5 million in the Wisconsin Senate race.50 The scope of spending also increased, from 111 House and Senate races in 2010 to 203 in 2012.
Not surprisingly, when super PACs chose to make IEs, they targeted their efforts carefully. In fact, the $10.1 million super PACs spent on IEs in just one Senate race—in Colorado—accounted for 16.5% of all super PAC IEs spending in 2010. Of the approximately $60 million super PACs spent in IEs overall in 2010, about 60% ($37.4 million) were in the 10 Senate contests in which super PACs invested most heavily.51 In 2012, despite spending in more races, most spending was again targeted to a relative few. Almost 70% of super PAC IE spending occurred in the 25 races shown on the right side of Figure 3.
Figure 3. The 25 Congressional Races in 2010 and 2012 in Which Super PACs Spent the Most on Independent Expenditures
|
Source: CRS figure and analysis of Federal Election Commission independent expenditure reports.
|
What Major Super PAC Issues Might Be on the Horizon?
Brief Answer
Because super PACs are new players in elections and because federal law and regulation have not been amended to reflect their presence, Congress might wish to conduct oversight or pursue legislative activity to clarify these new groups' place in federal campaigns. Super PAC activity might also be relevant for congressional oversight of the FEC as that agency continues to consider post-Citizens United rulemakings and reporting requirements. Looking ahead, questions about super PAC relationships with other organizations (particularly the issues of coordination and contribution limits), transparency, and their effect on future elections may be of particular interest.
Discussion
Super PACs address some of the most prominent and divisive issues in campaign finance policy. Most attention to super PACs is likely to emphasize their financial influence in elections, as is typically the case when new forces emerge on the campaign finance scene. Underlying that financial activity is law, regulation, or situational guidance (e.g., advisory opinions)—or the lack thereof—that shape how super PACs operate and are understood.
Policy Approaches
As noted previously, despite Citizens United
and SpeechNowand SpeechNow, federal election law and FEC
regulations have not, as of this writing, been amended to reflect the rise of super PACs. If
Congress considers it important to recognize the role of super PACs in some way, it could amend
FECA to do so. As it has generally done with other forms of PACs, Congress could also leave the
matter to the FEC
’'s regulatory discretion.
5152 The following points may be particularly relevant as
Congress considers how or whether to proceed.
•
Because advisory opinions do not have the force of regulation or law, the status
of super PACs is arguably unsettled. Additional legislative or regulatory action to
implement super PAC components of Citizens United and SpeechNow
might
might provide additional clarity to those wishing to organize or contribute to super
PACs.
•
If Congress believes additional clarity would be beneficial, it could choose to
enact legislation. This approach might be favored if Congress wishes to specify
particular requirements surrounding super PACs, either by amending FECA, or
by directing the FEC to draft rules on particular topics. Legislation has a potential
advantage of allowing Congress to specify its preferences on its timetable. It has
the potential disadvantage of falling short of sponsors
’' wishes if sufficient
agreement cannot be found to enact the legislation. No legislation introduced in
the 112th Congress the 112th or 113th Congresses focuses specifically on super PACs, but some bills contain
relevant provisions.
In the 113th Congress, H.R. 270 (Price, N.C.) would bar super PAC fundraising by federal candidates and officeholders. The latestH.R. 3585 (Price, N.C.) proposes new disclaimer
requirements that would apply to ads funded by super PACs and other entities.
The same is true for a revised version of the DISCLOSE Act, H.R.
4010148 (Van
Hollen), introduced in the House in February 2012. Senate companions, both
introduced by Senator Whitehouse, include S. 2219 and S. 3369. Revised
versions of the DISCLOSE Act would also require additional funding disclosure
that could affect super PACs. In particular, original sources of super PAC funds
that are today not necessarily transparent (as discussed elsewhere in this report)
would have to be reported to the FEC. A CRS congressional distribution
memorandum providing additional comparison of current and previous versions
of the DISCLOSE Act is available to House and Senate requesters from the
author of this report.52
•
Hollen), proposes new disclaimer requirements that would apply to ads funded by super PACs and other entities.
As an alternative to legislation, Congress could choose to defer to the FEC (or
perhaps other agencies, such as the IRS or SEC) with respect to new or amended
rules affecting super PACs. This approach has the potential advantage of
delegating a relatively technical issue to an agency (or agencies) most familiar
with the topic, in addition to freeing Congress to pursue other agenda items. It
51
For example, traditional PACs, known as separate segregated funds, originally arose from advisory opinions in the
1970s. Congress later incorporated the PAC concept into FECA amendments. For a historical overview, see, for
example, Robert E. Mutch, Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Law (New
York: Praeger, 1988), pp. 152-185; and Anthony Corrado, “Money and Politics: A History of Federal Campaign
Finance Law,” in The New Campaign Finance Sourcebook, Anthony Corrado, Thomas E. Mann, Daniel R. Ortiz, and
Trevor Potter (Washington: Brookings Institution Press, 2005), pp. 7-47.
52
Comparison of Selected Versions of the DISCLOSE Act, by R. Sam Garrett, various dates, CRS congressional
distribution memoranda. These memoranda are prepared for distribution to multiple congressional offices.
Congressional Research Service
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Super PACs in Federal Elections: Overview and Issues for Congress
with the topic, in addition to freeing Congress to pursue other agenda items. It has the potential disadvantage of producing results to which Congress might
object, particularly if the six-member FEC deadlocks, as it has done on certain
high-profile issues in recent years. The result could resemble the status quo, in
which there are few definitive answers about how super PACs are regulated. If
Congress chose the rulemaking approach, providing as explicit instructions as
possible about the topics to be addressed and the scope of regulations could
increase the chances of the rules reflecting congressional intent. Doing so might
also increase the chances that consensus could be achieved during the
implementation process.
Potential Policy Questions and Issues for Consideration
Despite some high
-profile activity in 2010 and 2012, much about super PACs remains unknown.
This lack of knowledge is due to a combination of the fact that these entities are new players in
elections and because the state of law and regulation surrounding the entities is arguably an open
question. The following points may warrant consideration as the super PAC issue continues to
emerge.
What is the Relationship Between Super PACs and Other Political Committees
or Organizations?
As noted previously, the FEC considers super PACs to be political committees subject to the
requirements and restrictions contained in FECA and FEC regulations. As such, super PACs are
prohibited from coordinating their activities with campaigns or other political committees (e.g.,
parties).
5353 Particularly during the 2012 election cycle, some observers
have raised questions about
whether super PACs
arewere really operating independently or whether their activities might violate
the spirit of limits on contributions or coordination regulations. The following points may be
relevant as Congress assesses where super PACs fit in the campaign environment.
•
Concerns about super PAC independence appear to be motivated at least in part
by the reported migration of some candidate campaign staff members to super
PACs that have stated their support for these candidates.
54
•
54
A second source of concern may be that legally separate organizations (e.g.,
501(c) tax-exempt political organizations, which are generally not regulated by
the FEC or federal election law) operate alongside some super PACs.
5555 Media
reports (and, it appears, popular sentiment) sometimes characterize these entities,
despite their status as unique political committees or
politicalpolitically active organizations, as a
single group. Questions
have also emerged during the 2012 cycle about whether
53
As noted previously, this report reflects common understanding of regulation and law as applied to super PACs.
Subsequent changes in law or regulation that explicitly address super PACs could yield alternative findings.
54
See, for example, Nicholas Confessore, “Lines Blur Between Candidates and PACs with Unlimited Cash,” New York
Times, August 27, 2011, p. A1; Steven Greenhouse, “A Campaign Finance Ruling Turned to Labor’s Advantage,” New
York Times, September 26, 2011, p. A1; and Kenneth P. Vogel, “Super PACs’ New Playground: 2012,” Politico,
August 10, 2011, online edition retrieved via LexisNexis.
55
For example, American Crossroads is a registered super PAC; Crossroads Grassroots Policy Strategies (GPS) is a
501(c)(4) tax-exempt organization. The same is reportedly true for perceived Democratic counterparts Priorities USA
Action and Priorities USA, respectively. See, for example, the sources noted in the previous foot note; and Eliza
Newlin Carney, “The Deregulated Campaign,” CQ Weekly Report, September 19, 2011, p. 1922.
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also emerged during the 2012 cycle about whether some large contributions—that would be prohibited if they went to candidate
campaigns—
havewere essentially
been routed through super PACs as IEs. Donors
who wish to do so may now contribute to candidate campaigns in limited
amounts and in unlimited amounts to super PACs supporting or opposing these or
other candidates.
•
As noted previously, super PACs must identify donors who contributed at least
$200. This requirement sheds light on contributions that go directly to super
PACs, but not necessarily those that go indirectly to super PACs. In particular, the
original source of contributions to trade associations or other organizations that
later fund IEs through super PACs could go unreported. For example, assume
Company A made a contribution to Trade Association B, and placed no
restrictions on how the contribution could be used. Trade Association B then used
Company A
’'s funds to contribute to a super PAC. Trade Association B—not
Company A—would be reported as the donor on FEC reports. As Figure
64 below
shows, an essential element in this relationship in this series of events is whether
the original contribution was
“"made for the purpose of furthering
”" an
independent expenditure. In practice, this means that those who do not wish their
identities to be reported to the FEC could make an unrestricted donation to an
intermediary organization, which then funnels the money to a super PAC. By
contrast, if a corporation, union, or individual chose to contribute directly to a
super PAC, or to make IEs itself, the entity
’'s identity would have to be disclosed
to the FEC.
Figure 6
Figure 4. Sample Disclosure for Corporations and Unions Using Direct Spending
versus Contributions to Other Entities
Source: CRS figure based on analysis of current disclosure requirements discussed throughout this report.
Notes: An individual could also spend funds as described in the left side of the figure (e.g., as could a
corporation or union). The 501(c) groups on the right side of the graph refer to social welfare organizations
[(c)(4)s], unions [(c)(5)s], and trade associations (c)(6)s].
a.
a.Reporting obligations would also apply to electioneering communications (ECs), if applicable
.
b.
, although such a scenario appears unlikely for super PACs.
b. A corporation or union could provide administrative support to a connected PAC, but contributions must
come from voluntary donations raised subject to FECA limits.
•
Because super PACs are prohibited from coordinating their activities with
campaigns, Congress might or might not feel that gathering additional
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Super PACs in Federal Elections: Overview and Issues for Congress
information about super PACs
’' independence is warranted. Whether or not super
PACs are sufficiently independent and whether their activities are tantamount to
contributions could be subject to substantial debate and would likely depend on
individual circumstances.
•
Concerns about the potential for allegedly improper coordination between super
PACs and the candidates they favor are a prominent aspect of the debate thus far,
but some might contend that more coordination would benefit super PACs and
candidates by permitting them to have a unified agenda and message. Candidate
frustration with
“outside”"outside" spending is not unique to super PACs. Indeed,
uncoordinated activities by traditional PACs, parties, and interest groups are a
common occurrence in federal elections, although some contend that super PACs
make concerns about outside messages increasingly urgent.
5656 Some observers
contend that the ability to coordinate should, therefore, be increased. Others,
however, warn that permitting more communication between outside groups and
campaigns would facilitate circumventing limits on campaign contributions.
•
As a general matter, it If Congress wished to limit potential coordination between super PACs and candidates or parties, it could amend FECA to supersede the existing coordination standard, which is currently housed in FEC regulations and has long been complex and controversial.57
It remains to be seen whether super PACs will compete with
or complement other institutional actors in elections, particularly other entities
that engage in independent expenditures, such as political parties. It is also
unclear whether, over time, super PACs will primarily focus on multiple
candidates or single candidates.
•
Recent Thus far, developments suggest that
certain “traditional” PACs—not operating as
super PACs—might be able to adapt some super PAC organizational
characteristics for the 2012 election cycle and beyond. Specifically, in October
, as with other non-party groups, super PACs could both complement and threaten traditional parties. After the 2012 elections, for example, some observers blamed super PACs for exacerbating alleged divisions among Republicans, while others saw them as a resource to eliminate primary candidates that some political professionals viewed as insufficiently mainstream to win general elections.58
Over time, some "traditional" PACs—not operating as super PACs—might be able to adapt some super PAC organizational characteristics. Specifically, in October 2011, the FEC announced that, in response to an agreement reached in a recent
court case (Carey v.
FEC57FEC59), the agency would permit
nonconnected PACs—
nonconnected PACs—those that are unaffiliated with corporations or unions—to accept unlimited
contributions for use in independent expenditures. The agency directed PACs
choosing to do so to keep the IE contributions in a separate bank account from
the one used to make contributions to federal candidates.
5860 As such,
nonconnected PACs that want to raise unlimited sums for IEs are now able to
create a separate bank account and meet additional reporting obligations rather
than forming a separate super PAC. It remains to be seen how widely this
practice will be adopted. Even if widespread, super PACs could continue to be an
avenue for those other than nonconnected PACs (e.g., PACs connected to labor
organizations or corporations, or groups of individuals) to engage in unlimited
fundraising and spending on IEs.
56
See, for example, Josh Boak, “Enter the Era of the Super PAC,” Campaigns & Elections, September 2011, online
edition, http://www.campaignsandelections.com/magazine/us-edition/257312/enter-the-era-of-super-pacs.thtml. On
campaign concerns about outside messages generally, see, for example, Michael John Burton and Daniel M. Shea.
Campaign Mode: Strategic Vision in Congressional Elections (Lanham, MD: Rowman and Littlefield, 2003); R. Sam
Garrett, Campaign Crises: Detours on the Road to Congress (Boulder, CO: Lynne Rienner Publishers, 2010); and
Dancing Without Partners: How Candidates, Parties, and Interest Groups Interact in the Presidential Campaign, ed.
David B. Magleby, J. Quin Monson, and Kelly D. Patterson (Lanham, MD: Rowman and Littlefield, 2007).
57
Civ. No. 11-259-RMC (D.D.C. 2011).
58
Federal Election Commission, “FEC Statement on Carey v. FEC: Reporting Guidance for Political Committees that
Maintain a Non-Contribution Account,” press release, October 5, 2011, http://www.fec.gov/press/Press2011/
20111006postcarey.shtml.
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Super PACs in Federal Elections: Overview and Issues for Congress
fundraising and spending on IEs.Is Super PAC Activity Sufficiently Transparent?
In addition to the organizational questions noted above—which may involve transparency
concerns—Congress may be faced with examining whether enough information about super
PACs is publicly available to meet the FECA goal of preventing real or apparent corruption.
5961 The
following points may be particularly relevant as Congress considers transparency surrounding
super PACs.
•
In the absence of additional reporting requirements, or perhaps amendments
clarifying the FEC
’s coordination60's coordination62 rules, determining the professional networks
that drive super PACs will likely be left to the media or self-reporting. In
particular, relationships between super PACs and possibly related entities, such as
527 and 501(c) organizations, generally cannot be widely or reliably established
based on current reporting requirements.
61
•
As the Appendix63
As the Appendix notes, and as is the case with most political committees,
assessing super PAC financial activities generally requires using multiple kinds
of reports filed with the FEC. Depending on when those reports are filed, it can
be difficult to summarize all super PAC spending affecting federal elections. Due
to amended filings, data can change frequently. Reconciling IE reports with other
reports (e.g., those filed after an election) can also be challenging and require
technical expertise. Streamlining reporting for super PACs might have benefits of
making data more available for regulators and researchers. On the other hand,
some may argue that because super PAC activities are independent, their
reporting obligations should be less than for political committees making or
receiving contributions.
•
Because super PACs (and other PACs) may file semi-annual reports during
nonelectionnon-election years, information about potentially significant fundraising or spending
activity might go publicly unreported for as long as six months. Consequently,
some super PACs did not file detailed disclosure reports summarizing their 2011
activity until after the 2012 Iowa caucus and primaries in states such as New
Hampshire, Florida, and South Carolina.
•
Given the preceding points, a policy question for Congress may be whether the
implications of the current reporting requirements represent
“loopholes” that
"loopholes" that should be closed or whether existing requirements are sufficient.
62 If additional
59
For additional discussion of disclosure matters generally, see CRS Report R41542, The State of Campaign Finance
Policy: Recent Developments and Issues for Congress, by R. Sam Garrett.
60
See, for example, 11 CFR §109.20-11 CFR §109.23.
61
See, for example CRS Report R41542, The State of Campaign Finance Policy: Recent Developments and Issues for
Congress, by R. Sam Garrett; Eliza Newlin Carney, “The Deregulated Campaign,” CQ Weekly Report, September 19,
2011, p. 1922; and Diane Freda, “Section 501(c)(4) Spending Expected to Hit New Records in 2012 Election,” Daily
Report for Executives, vol. 180 (September 16, 2011), p. J-1.
62
Members of Congress have taken a variety of positions over the appropriate level of disclosure for political
committees and other organizations in recent years. This is particularly true for what level of disclosure should be
required for contributions to organizations making IEs or electioneering communications—perhaps most notably in
recent years through the 111th Congress debate over the DISCLOSE Act. See CRS Report R41264, The DISCLOSE
Act: Overview and Analysis, by R. Sam Garrett, L. Paige Whitaker, and Erika K. Lunder. In the 112th Congress,
Representative Van Hollen filed a rulemaking petition with the FEC stating that the agency had improperly interpreted
statute when writing regulations (11 C.F.R. §109.10(e)) that required disclosure of contributions supporting
independent expenditures only if the contributions were made “for the purpose of furthering” the IEs. See Federal
(continued...)
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Super PACs in Federal Elections: Overview and Issues for Congress
64 If additional information is desired, Congress or the FEC could revisit campaign finance law
or regulation to require greater clarity about financial transactions. As with
disclosure generally, the decision to revisit specific reporting requirements will
likely be affected by how much detail is deemed necessary to prevent corruption
or accomplish other goals.
Conclusion
Conclusion
Super PACs are only one element of modern campaigns. Regular media attention to super PACs
might give an overstated impression of these organizations
’' influence in federal elections.
Nonetheless—and notwithstanding that much about the organizations remains to be seen—there
appears to be no shortage of individuals and organizations eager to form these new political
committees that can raise and spend unlimited sums supporting or opposing federal candidates.
Super PACs join other groups in American politics, such as parties and 527 organizations, that are
legally separate from the candidates they support or oppose, but whom some regard as practically
an extension of the campaign. Questions of super PAC independence
may bewere particularly relevant
in 2012, as super PACs
competecompeted to elect or defeat congressional and presidential candidates. As
with most campaign finance issues, whether Congress decides to take action on the super PAC
issue, and how, will likely depend on the extent to which super PAC activities are viewed as an
exercise in free speech by independent organizations versus thinly veiled extensions of individual
campaigns.
(...continued)
Election Commission, “Rulemaking Petition: Independent Expenditure Reporting,” 76 Federal Register 36000, June
21, 2011. As of this writing, the matter is unresolved.
Congressional Research Service
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Super PACs in Federal Elections: Overview and Issues for Congress
campaigns.
Appendix. Methodological Notes
The information about super PAC fundraising and spending contained in this report resulted from
CRS analysis of FEC data. This appendix briefly discusses the methodology employed and notes
caveats that may affect how the data are interpreted or replicated. Alternative approaches would
likely yield different results. CRS consulted extensively with FEC staff about data matters.
63
65
This report relies primarily on two data sources. Notes in the text, tables, and figures identify the
data for each point of analysis. As explained in the text of the report, super PACs file at least two
kinds of regular financial reports with the FEC: (1) monthly or semi-annual summaries of all
fundraising and spending (FEC form 3X and schedule
E64E66); and (2) 24- or 48-hour notices of
independent expenditures (which may also be filed using schedule E). Because these reports
cover different periods and are filed at different times, slight differences in fundraising and
spending amounts are common. Reconciling the reports can be particularly challenging and
timeconsumingtime-consuming, and may be of limited utility because differences between the two are usually small.
For the overall fundraising and spending amounts discussed in the report, the analysis relies on
summaries of total fundraising and spending (derived from the 3X filings) provided by the FEC
.
for 2010, or as accessed from the FEC Committee Summary File for 2012. The analysis of spending supporting or opposing candidates comes from the independent
expenditure (IE) reports, which provide the clearest statements of super PAC spending favoring
one candidate or another and which are filed in real-time. Amended or duplicate filings
(which
appear not to be a major factor in the data used in this report) may change the results if replicated
in the future.
may change the results if replicated in the future. Amended filings appear not to have been a major factor in the 2010 data. For 2012, CRS analyzed all IE filings and deleted filings that appeared to be superseded by amendments. Nonetheless, variation in campaign finance data is typical depending on the source, when the data were accessed, and how amendments were handled.
In the absence of additional reporting requirements, identifying super PACs currently requires the
assumption that a super PAC has notified the FEC of its status by letter. To isolate super PAC
spending on IEs, CRS accessed the entire 2010
IE data file (containing approximately 48,000 IE
reports) and selected the approximately 1,200and 2012 IE data files and selected those made by organizations that had notified the
commission of their super PAC status.
6567 Some cases of ambiguous organization names (e.g.,
various state-level chapters of a national organization or groups with similar names but different
filing obligations) required consultation with FEC staff. It is possible that organizations that were
excluded are, in fact, super PACs but filed reports incorrectly or not at all. Similarly, because data
throughout the report rely on information reported to the FEC, an organization whose spending
was too low to trigger disclosure requirements would not be reflected in the report. Therefore, the
data exclude a presumably small amount of super PAC financial activity. Missing data might be
exacerbated if a super PAC did not believe its activities required disclosure, or if, for example, it
chose not to file until federal election law or regulations were amended to explicitly address super
PACs.
CRS corrected super PAC and candidate name spellings, party affiliations, and support for or
opposition to candidates in cases of obvious error or missing data (and where a clear answer
63
In particular, this included FEC disclosure database analyst Paul Clark.
Form 3X reports receipts and disbursements for entities other than authorized committees (e.g., PACs). Schedule E
of form 3X reports itemized independent expenditures, including indications of support or opposition for specific
candidates. Electronic versions of schedule E are known as Form 24.
65
The remaining IEs were reported by entities such as traditional PACs, parties, or individuals.
64
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Super PACs in Federal Elections: Overview and Issues for Congress
could be determined). CRS also disregarded the few cases of super PAC IE reports that appear to
have been filed unnecessarily, such as those supporting state-level candidates.
PACs.
For the analysis of spending on individual races, CRS standardized spellings of candidate names
and the indicators for the districts or states in which they sought election. The total spending
amounts and total IE amounts listed for the House and Senate races discussed are based on
amounts from individual candidate reports contained on the FEC website, which CRS combined
to yield totals for the entire race. These totals include primary and general election activity, and
are listed as such on the FEC website.
CRS calculated the favored Democrats and favored Republicans amounts by totaling sums in IE
reports listed as supporting or opposing candidates from each major party (e.g.,
favored
Democratsfavored Democrats includes expenditures reported as supporting Democrats or opposing Republicans).
The favored measure arguably accounts for the overall effect of IE spending by examining both
supportive and opposing messages that could benefit one candidate over another. The measure
assumes that, for example, a negative message (reported as
opposeoppose) about a Republican candidate
advantages the Democratic opponent. This would not be so in all cases (such as in IEs aired
during primary contests). Overall, however, this approach may provide a more complete picture
of super PAC activities than one that assumes advertising that supports or opposes one candidate
has no effect on another.
This report does not attempt to assess the practical effect of these expenditures on individual
candidates or to fully document their implications in individual races. As such, the spending
discussed here should be regarded as one measure of super PAC activity, but not a comprehensive
accounting of super PACs
’ electoral influence.
A Note on 2012 Data
Data for the 2012 cycle were assembled as described above from the latest available financial
reports (e.g., 3Xs) filed with the FEC and contained in the agency’s “committee summary file.”
This report will be updated as major developments warrant throughout the 2012 cycle, but it is
not intended to serve as a detailed financial tracking report. Indeed, early developments in 2012
suggest that super PACs are making sufficient (and sufficiently large) independent expenditures
in some cases that IE summaries published in this format would be quickly outdated. Additional
data will be provided as events warrant and as stable, reliable data become available.
Author Contact Information
R. Sam Garrett
Specialist in American National Government
rgarrett@crs.loc.gov, 7-6443
Congressional Research Service
32
' electoral influence.
Footnotes
| 1.
|
For a discussion of current campaign finance issues generally, see CRS Report R41542, The State of Campaign Finance Policy: Recent Developments and Issues for Congress, by [author name scrubbed].
|
| 2.
|
On the definition of IEs, see 2 U.S.C. §431(17).
|
| 3.
|
130 S. Ct. 876 (2010); and 599 F.3d 686 (D.C. Cir. 2010) respectively.
|
| 4.
|
The discussion here is not intended to be exhaustive. For additional information, see, for example, 11 C.F.R. §109.20 and 11 C.F.R. §109.21.
|
| 5.
|
As the term is commonly used, 527 refers to groups registered with the Internal Revenue Service (IRS) as Section 527 political organizations that seemingly intend to influence federal elections in ways that may place them outside the FECA definition of a political committee. By contrast, political committees (which include candidate committees, party committees, and political action committees) are regulated by the FEC and federal election law. There is a debate regarding which 527s are required to register with the FEC as political committees. For additional discussion, see CRS Report RS22895, 527 Groups and Campaign Activity: Analysis Under Campaign Finance and Tax Laws, by [author name scrubbed] and [author name scrubbed]. All political committees, including super PACs, are Section 527 political organizations for tax purposes.
|
| 6.
|
130 S. Ct. 876 (2010). For additional discussion, see CRS Report R41045, The Constitutionality of Regulating Corporate Expenditures: A Brief Analysis of the Supreme Court Ruling in Citizens United v. FEC, by [author name scrubbed].
|
| 7.
|
599 F.3d 686 (D.C. Cir. 2010).
|
| 8.
|
Federal election law and FEC regulations have not been amended to clarify the role of super PACs. SpeechNow and related FEC advisory opinions have held that super PACs cannot make contributions to candidates or parties.
|
| 9.
|
This is particularly true, some argue, for super PACs that are believed to be organized primarily for supporting or opposing particular campaigns rather than several campaigns. See, for example, Fred Wertheimer, "Democracy Loses With Super PACs," Politico, September 28, 2011, p. 27.
|
| 10.
|
See, for example, Federal Election Commission, "FEC Statement on the Supreme Court's Decision in Citizens United v. FEC," press release, February 5, 2010, http://www.fec.gov/press/press2010/20100205CitizensUnited.shtml.
|
| 11.
|
The commission deadlocked in two 3-3 votes on draft NPRM documents 11-02, draft A, and 11-02-A, at the January 20, 2011, meeting. See Federal Election Commission, January 20, 2011, meeting minutes, pp. 4-5, http://www.fec.gov/agenda/2011/approved2011_06.pdf. A vote to approve draft NPRM document 11-33 failed on a 2-4 vote at the June 15, 2011, commission meeting. At the same meeting, alternative draft NPRM document 11-33-A resulted in a deadlocked 3-3 vote. See Federal Election Commission, June 15, 2011, meeting minutes, pp. 3-4, http://www.fec.gov/agenda/2011/approved2011_39.pdf. FECA requires that at least four commissioners vote affirmatively to approve NPRMs and final rules. For additional discussion, see CRS Report RS22780, The Federal Election Commission (FEC) With Fewer than Four Members: Overview of Policy Implications, by [author name scrubbed].
|
| 12.
|
Federal Election Commission, "Independent Expenditures and Electioneering Communications by Corporations and Labor Organizations," 248 Federal Register 80803, December 27, 2011.
|
| 13.
|
AOs provide an opportunity to pose questions about how the commission interprets the applicability of FECA or FEC regulations to a specific situation (e.g., a planned campaign expenditure). AOs apply only to the requester and within specific circumstances, but can provide general guidance for those in similar situations. See 2 U.S.C. §437f.
|
| 14.
|
The AOs are available from the FEC website at http://saos.nictusa.com/saos/searchao.
|
| 15.
|
For sample letters, see Appendix A in AOs 2010-09 and 2010-11. A template is available at http://www.fec.gov/pdf/forms/ie_only_letter.pdf.
|
| 16.
|
AOs do not have the force of regulation or law. Although AOs can provide guidance on similar circumstances in other settings, some may argue that AOs cannot, in and of themselves, create broad guidance about super PACs or other topics.
|
| 17.
|
Majority PAC was formerly known as Commonsense Ten, the super PAC discussed above.
|
18.
|
On limitations on contributions to PACs, see Table 1 in CRS Report R41542, The State of Campaign Finance Policy: Recent Developments and Issues for Congress, by [author name scrubbed]. This section assumes a super PAC would achieve multicandidate committee status. Multicandidate committees are those that have been registered with the FEC (or, for Senate committees, the Secretary of the Senate) for at least six months; have received federal contributions from more than 50 people; and (except for state parties) have made contributions to at least five federal candidates. See 11 C.F.R. §100.5(e)(3). In practice, most PACs attain multicandidate status automatically over time.
| 19.
|
Colbert's super PAC is popularly known as the Colbert Super PAC. It is registered with the FEC as Americans for a Better Tomorrow, Tomorrow. For a scholarly discussion, see [author name scrubbed], "Seriously Funny: Understanding Campaign Finance Policy Through the Colbert Super PAC," Saint Louis University Law Journal, vol. 56, no. 3 (Spring 2012), pp. 711-723.
|
| 20.
|
On the press exemption, see 2 U.S.C. §431(9)(B)(i); 11 C.F.R. §100.73; 11 C.F.R. §100.132; and discussion in AO 2011-11, pp. 6-8.
|
| 21.
|
See AO 2011-11, pp. 7-9. AOs are available from the FEC website at http://saos.nictusa.com/saos/searchao.
|
| 22.
|
Ibid., p. 9.
|
| 23.
|
See AO request (AOR) 2011-23, p. 5. The AOR was filed, as is typical, in a letter from the requester's counsel to the FEC General Counsel. See Letter from Thomas Josefiak and Michael Bayes to Anthony Herman, General Counsel, FEC, October 28, 2011, in the AO 2011-23 documents at http://saos.nictusa.com/saos/searchao.
|
| 24.
|
Coordination is discussed later in this report. On coordination and the three-part regulatory test for coordination, see, respectively 2 U.S.C. §441a(a)(7)(B) and 11 C.F.R. §109.21.
|
| 25.
|
Commissioners Bauerly and Weintraub issued a "statement of reasons" document explaining their rationale, as did Commissioner Walther and the three Republican commissioners. See Cynthia L. Bauerly and Ellen L. Weintraub, Statement on Advisory Opinion Request 2011-23 (American Crossroads), Federal Election Commission, Washington, DC, December 1, 2011; Steven T. Walther, Advisory Opinion Request 2011-23 (American Crossroads): Statement of Commissioner Steven T. Walther, Federal Election Commission, Washington, DC, December 1, 2011; and Caroline C. Hunter, Donald T. McGahn, and Matthew S. Petersen, Advisory Opinion Request 2011-23 (American Crossroads): Statement of Vice Chair Caroline C. Hunter and Commissioners Donald T. McGahn and Matthew S. Petersen, Federal Election Commission, Washington, DC, December 1, 2011.
|
| 26.
|
Leadership PACs are PACs affiliated with Members of Congress that provide an additional funding mechanism to support colleagues' campaigns. Although historically the purview of members of the House and Senate leadership, many Members of Congress now have leadership PACs. Leadership PACs are separate from the candidate's principal campaign committee.
|
| 27.
|
This is FEC form 1. Essentially, it provides the FEC with information about how to contact the campaign and identifies the treasurer.
|
| 28.
|
Political committees devoted solely to Senate activities file reports with the Secretary of the Senate, who transmits them to the FEC for public positing. In theory, if a super PAC were devoted solely to affecting Senate campaigns, it is possible the super PAC would file with the Secretary rather than with the FEC. Nonetheless, the information would be transmitted to the FEC.
|
| 29.
|
Reporting typically occurs quarterly. Pre- and post-election reports must also be filed. Non-candidate committees may also file monthly reports. See, for example, 2 U.S.C. §434 and the FEC's Campaign Guide series for additional discussion of reporting requirements.
|
| 30.
|
As noted previously, unlike other political committees, Senate political committees (e.g., a Senator's principal campaign committee) file reports with the Secretary of the Senate, who transmits them to the FEC. See 2 U.S.C. §432(g).
|
| 31.
|
The occupation and employer requirements apply to contributions from individuals.
|
| 32.
|
FECA contains some exceptions. For example, all disbursements used to make contributions to another political committee must be itemized, regardless of amount. See 2 U.S.C. §434(b)(4).
|
| 33.
|
FEC policy guidance has stated that "when considered along with the identity of the disbursement recipient, must be sufficiently specific to make the purpose of the disbursement clear." In general, however, political committees have broad leeway in describing the purpose of disbursements. For example, the commission has noted that generic terms such as "administrative expenses" are inadequate, but "salary" is sufficient. The quoted material and additional discussion appears in Federal Election Commission, "Statement of Policy: Purpose of Disbursement," 72 Federal Register 887-889, January 9, 2007.
|
| 34.
|
Quarterly reports are due to the FEC on April 15, July 15, and October 15. The final quarterly report is due January 31 of the next year. Monthly reports are due to the commission 20 days after the end of the previous month. The year-end report is due by January 31 of the year after the election. Pre-election reports summarizing activity for the final weeks of an election period must be filed with the FEC 12 days before the election. Monthly or quarterly reports are not required if their due dates fall near an otherwise required pre-election report. Post-general reports must be filed 30 days after the election; post-primary reports are not required. Additional requirements apply to special elections. See 11 C.F.R. §104.5(c)(1).
|
| 35.
|
The reports are due to the FEC by July 31 and January 31 respectively. See 11 C.F.R. §104.5(c)(2).
|
| 36.
|
Separate reporting obligations apply to electioneering communications.
|
| 37.
|
See, for example, 2 U.S.C. §434(g).
|
| 38.
|
2 U.S.C. §434(g)(3)(B).
|
| 39.
|
Remaining amounts were apparently spent on items such as administrative expenses and non-federal races. IE totals range from approximately $61 million to approximately $65 million depending on whether one analyzes summary data provided by the FEC or sums individual IE filings. As discussed elsewhere in this report, various data sources and different filing schedules often yield slightly different numbers.
|
| 40.
|
The FEC provided CRS with data on spending by individual committees. The text in this section is based on CRS analysis of those data, including aggregating the totals and calculating percentages listed in the text.
|
| 41.
|
The FEC subsequently administratively terminated some super PACs that had no financial activity.
|
| 42.
|
The 2012 findings are based on CRS analysis of total receipts and disbursements by super PACs as reported in the FEC Committee Summary File.
|
| 43.
|
The FEC provided CRS with data on spending by individual committees. CRS aggregated the totals listed in the text. In the absence of additional regulations concerning registration for super PACs, it is not clear that all organizations are reflected in the figures in the text.
|
| 44.
|
This information is based on CRS analysis of super PAC data in the FEC Committee Summary File.
|
| 45.
|
Ibid.
|
| 46.
|
Ibid.
|
| 47.
|
Ibid. This figure excludes IEs supporting or opposing third-party and independent candidates.
|
48.
|
Table 3 excludes 2010 data to conserve space, but the data are available from the author and in previous versions of this report.
| 49.
|
The data represent total spending. Although not reflected in FEC reports, alternative measures might include, for example, the number of unique advertisements, gross rating points (in brief, a measure of advertising impressions) purchased, etc.
|
| 50.
|
This section only shows data in the figures and table for spending in the 25 contests in which super PACs spent the most on IEs. The underlying CRS analysis is based on all super PAC IE spending.
|
| 51.
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These are the CO Senate through AK Senate entries on the top of the left side of the figure.
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| 52.
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For example, traditional PACs, known as separate segregated funds, originally arose from advisory opinions in the 1970s. Congress later incorporated the PAC concept into FECA amendments. For a historical overview, see, for example, Robert E. Mutch, Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Law (New York: Praeger, 1988), pp. 152-185; and Anthony Corrado, "Money and Politics: A History of Federal Campaign Finance Law," in The New Campaign Finance Sourcebook, Anthony Corrado, Thomas E. Mann, Daniel R. Ortiz, and Trevor Potter (Washington: Brookings Institution Press, 2005), pp. 7-47.
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| 53.
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As noted previously, this report reflects common understanding of regulation and law as applied to super PACs. Subsequent changes in law or regulation that explicitly address super PACs could yield alternative findings.
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| 54.
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See, for example, Nicholas Confessore, "Lines Blur Between Candidates and PACs with Unlimited Cash," New York Times, August 27, 2011, p. A1; Steven Greenhouse, "A Campaign Finance Ruling Turned to Labor's Advantage," New York Times, September 26, 2011, p. A1; and Kenneth P. Vogel, "Super PACs' New Playground: 2012," Politico, August 10, 2011, online edition retrieved via LexisNexis.
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| 55.
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For example, American Crossroads is a registered super PAC; Crossroads Grassroots Policy Strategies (GPS) is a 501(c)(4) tax-exempt organization. The same is reportedly true for perceived Democratic counterparts Priorities USA Action and Priorities USA, respectively. See, for example, the sources noted in the previous foot note; and Eliza Newlin Carney, "The Deregulated Campaign," CQ Weekly Report, September 19, 2011, p. 1922.
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| 56.
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See, for example, Josh Boak, "Enter the Era of the Super PAC," Campaigns & Elections, September 2011, online edition, http://www.campaignsandelections.com/magazine/us-edition/257312/enter-the-era-of-super-pacs.thtml. On campaign concerns about outside messages generally, see, for example, Michael John Burton and Daniel M. Shea. Campaign Mode: Strategic Vision in Congressional Elections (Lanham, MD: Rowman and Littlefield, 2003); [author name scrubbed], Campaign Crises: Detours on the Road to Congress (Boulder, CO: Lynne Rienner Publishers, 2010); and Dancing Without Partners: How Candidates, Parties, and Interest Groups Interact in the Presidential Campaign, ed. David B. Magleby, J. Quin Monson, and Kelly D. Patterson (Lanham, MD: Rowman and Littlefield, 2007).
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| 57.
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The coordinated communication regulations are at 11 C.F.R. 109.21.
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| 58.
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See, for example, Eliza Newlin Carney, "Republican Super PAC War Splits the Party," Roll Call, March 20, 2013, p 1.
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| 59.
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Civ. No. 11-259-RMC (D.D.C. 2011).
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| 60.
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Federal Election Commission, "FEC Statement on Carey v. FEC: Reporting Guidance for Political Committees that Maintain a Non-Contribution Account," press release, October 5, 2011, http://www.fec.gov/press/Press2011/20111006postcarey.shtml.
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| 61.
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For additional discussion of disclosure matters generally, see CRS Report R41542, The State of Campaign Finance Policy: Recent Developments and Issues for Congress, by [author name scrubbed].
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| 62.
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See, for example, 11 CFR §109.20-11 CFR §109.23.
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| 63.
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See, for example CRS Report R41542, The State of Campaign Finance Policy: Recent Developments and Issues for Congress, by [author name scrubbed]; Eliza Newlin Carney, "The Deregulated Campaign," CQ Weekly Report, September 19, 2011, p. 1922; and Diane Freda, "Section 501(c)(4) Spending Expected to Hit New Records in 2012 Election," Daily Report for Executives, vol. 180 (September 16, 2011), p. J-1.
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| 64.
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Members of Congress have taken a variety of positions over the appropriate level of disclosure for political committees and other organizations in recent years. This is particularly true for what level of disclosure should be required for contributions to organizations making IEs or electioneering communications—perhaps most notably in recent years through the 111th Congress debate over the DISCLOSE Act. See CRS Report R41264, The DISCLOSE Act: Overview and Analysis, by [author name scrubbed], [author name scrubbed], and [author name scrubbed]. In the 112th Congress, Representative Van Hollen filed a rulemaking petition with the FEC stating that the agency had improperly interpreted statute when writing regulations (11 C.F.R. §109.10(e)) that required disclosure of contributions supporting independent expenditures only if the contributions were made "for the purpose of furthering" the IEs. See Federal Election Commission, "Rulemaking Petition: Independent Expenditure Reporting," 76 Federal Register 36000, June 21, 2011. As of this writing, the matter is unresolved.
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| 65.
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In particular, this included FEC disclosure database analyst Paul Clark.
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| 66.
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Form 3X reports receipts and disbursements for entities other than authorized committees (e.g., PACs). Schedule E of form 3X reports itemized independent expenditures, including indications of support or opposition for specific candidates. Electronic versions of schedule E are known as Form 24.
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| 67.
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The remaining IEs were reported by entities such as traditional PACs, parties, or individuals.
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