“Super PACs” in Federal Elections:
Overview and Issues for Congress
R. Sam Garrett
Specialist in American National Government
December 2, 2011
Congressional Research Service
7-5700
www.crs.gov
R42042
CRS Report for Congress
Pr
epared 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
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.
Much about super PACs’ activities remains unknown. This report explores what super PACs are,
how they developed, what they raised and spent in the 2010 election cycle, and issues that appear
on the horizon for 2012. As of this writing, Congress has not amended the Federal Election
Campaign Act (FECA) to formally recognize the role of super PACs. No legislation introduced in
the 112th Congress specifically addresses super PACs. The FEC has issued advisory opinions, but
has not yet approved regulations on the subject.
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. Super PAC financial activities appear likely to be even more ambitious
in 2012. Already, approximately 250 super PACs have registered with the FEC, some of which
are reportedly staffed by operatives with close ties to 2012 presidential campaigns. 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 ............................................................................................. 1
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 Major Super PAC Issues Might Be on the Horizon?............................................................ 21
Conclusion ..................................................................................................................................... 27
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
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
Appendixes
Appendix. Methodological Notes .................................................................................................. 28
Congressional Research Service
“Super PACs” in Federal Elections: Overview and Issues for Congress
Contacts
Author Contact Information........................................................................................................... 29
Congressional Research Service
“Super PACs” in Federal Elections: Overview and Issues for Congress
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 SpeechNow. 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 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 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’ 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.
• In 2010, most super PACs financial activities were modest. Ten super PACs
accounted for almost 75% of all super PAC spending.
• 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.
• Looking ahead to 2012 and beyond, super PAC activity might be substantial.
Super PACs were permitted to operate for only the final 10 months of the 2010
election cycle. During that time, almost 80 super PACs were able to organize and
spend more than $60 million supporting or opposing federal candidates. Several
super PACs supporting specific candidates—particularly in the presidential
race—appear poised to raise and spend millions of dollars in 2012. Almost 100
new super PACs registered with the FEC between early October and early
December 2011.
Organization and Scope of the Report
Questions and answers about selected super PAC topics organize the following discussion. In
particular:
Congressional Research Service
1
“Super PACs” in Federal Elections: Overview and Issues for Congress
• Brief Answer sections provide short summary information responding to each
question.
• 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.1 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.
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”). 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).
Congressional Research Service
2
“Super PACs” in Federal Elections: Overview and Issues for Congress
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
SpeechNow, new kinds of PACs devoted solely to making independent expenditures emerged.3
These groups are popularly known as super PACs; they are also known as independent-
expenditure-only committees (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 coordinated with candidates or parties. Determining whether an expenditure
is coordinated can be highly complex and depends on individual circumstances.4 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 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 makes them similar to organizations known as 527s and
some 501(c) organizations that often engage in political activity.5 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.
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 L. Paige
Whitaker and Erika K. Lunder. All political committees, including super PACs, are Section 527 political organizations
for tax purposes.
Congressional Research Service
3
“Super PACs” in Federal Elections: Overview and Issues for Congress
Table 1. Basic Structure of Super PACs versus Other Political Committees and Organizations
(Refers to federal elections only)
Is the entity
Can federal
typically
candidates raise
Are there limits on
considered a
Are there limits on
funds the entity
contributions the
political
Must certain
Can the entity make
the amount the entity
plans to
entity may receive for
committee by
contributors be
contributions to
can contribute to
contribute in
use in federal
the FEC?
disclosed to the FEC?
federal candidates?
federal candidates?
federal elections?
elections?
Super PACs
Yes
Yes
No
Not permitted to make
Yes, within FECA
No
federal contributions
limits
“Traditional” PACsa Yes
Yes
Yes
$5,000
per
candidate,
Yes, within FECA
$5,000 annually from
per election
limits
individuals; other limits
established in FECA
Party Committees
Yes
Yes
Yes
$5,000 per candidate,
Yes, within FECA
$30,800 from individuals;
per election
limits
other limits established
in FECA
Candidate
Yes Yes
Yes
$2,000
per
candidate,
Yes, within FECA
$2,500 per candidate,
Committees
per election
limits
per election from
individuals; other limits
established in FECA
527sb
No
No, unless independent
No
Not permitted to make
N/A No
expenditures or
federal contributions
electioneering
communicationsc
501(c)(4)s, (5)s,
No
No, unless independent
No
Not permitted to make
N/A No
(6)sd
expenditures or
federal contributions
electioneering
communicationse
Source: CRS adaptation from Table 1 in CRS Report R41542, The State of Campaign Finance Policy: Recent Developments and Issues for Congress, by R. Sam Garrett; and
Federal Election Commission, “Contribution Limits for 2011-2012,” http://www.fec.gov/info/contriblimits1112.pdf.
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
al candidate committees and $70,800 to party and PAC committees) also applies. These amounts are adjusted biennial y 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 $43,100, which is adjusted biennially for
inflation.
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 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
CRS-4
“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. 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 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, seeCRS Report RS22895, 527 Groups and Campaign Activity: Analysis Under Campaign Finance and Tax Laws, by L. Paige Whitaker and Erika K.
Lunder.
c. 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.
d. For additional discussion of these groups, see CRS Report RL33377, Tax-Exempt Organizations: Political Activity Restrictions and Disclosure Requirements, by Erika K.
Lunder; and CRS CRS Report R40183, 501(c)(4) Organizations and Campaign Activity: Analysis Under Tax and Campaign Finance Laws, by Erika K. Lunder and L. Paige
Whitaker.
e. 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
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 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
As a consequence of Citizens United, corporations and unions are now free to use their treasury
funds to air political advertisements explicitly calling for election or defeat of federal or state
candidates (independent expenditures or IEs), 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 Commission7 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 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 cannot8 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.9 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.
Congressional Research Service
6
“Super PACs” in Federal Elections: Overview and Issues for Congress
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
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
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
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
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
Congressional Research Service
7
“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
As of this writing, however, the agency has yet to approve an NPRM. Specifically, the
commission either deadlocked or voted not to approve competing NPRM drafts in January 2011
and June 2011.11 The draft NPRMs released as of this writing cover a variety of post-Citizens
United matters. It is possible that these or other commission rules—if approved—could place
additional responsibilities on 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.12 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).13 In
light of Citizens United and 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.14 The major policy consequence of the Club for Growth
and Commonsense Ten AOs was to permit, based on Citizens United and
SpeechNow, super PACs to raise unlimited contributions supporting independent
expenditures.15
• 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
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 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.
13 The AOs are available from the FEC website at http://saos.nictusa.com/saos/searchao.
14 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.
15 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.
Congressional Research Service
8
“Super PACs” in Federal Elections: Overview and Issues for Congress
contributions for super PACs within limits.16 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).17
• 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.18 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 “press exemption,” thereby avoiding reporting
requirements.19 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.20 Viacom would also need to report costs
incurred to administer the super PAC.21
• 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
advocacy calling for election or defeat of the candidates.22 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
16 Majority PAC was formerly known as Commonsense Ten, the super PAC discussed above.
17 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.
18 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.
19 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.
20 See AO 2011-11, pp. 7-9. AOs are available from the FEC website at http://saos.nictusa.com/saos/searchao.
21 Ibid., p. 9.
22 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.
Congressional Research Service
9
“Super PACs” in Federal Elections: Overview and Issues for Congress
excess of federal contribution limits.23 (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.24 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 PAC25 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
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. Finally, 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
23 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.
24 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 Crossraods), 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.
25 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.
Congressional Research Service
10
“Super PACs” in Federal Elections: Overview and Issues for Congress
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” 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
Super PACs must follow the same reporting requirements as traditional PACs. This includes filing
statements of organization26 and regular financial reports detailing most contributions and
expenditures.
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 FEC27 and made
available for public inspection in person or on the commission’s website.
Super PACs and other political committees must regularly28 file reports with the FEC29
summarizing, among other things,
• total receipts and disbursements;
• the name, address, occupation, and employer30 of those who contribute more than
$200 in unique or aggregate contributions per year;
• the name and address of the recipient of disbursements exceeding $200;31 and
• the purpose of the disbursement.32
26 This is FEC form 1. Essentially, it provides the FEC with information about how to contact the campaign and
identifies the treasurer.
27 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.
28 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.
29 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).
30 The occupation and employer requirements apply to contributions from individuals.
31 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).
Congressional Research Service
11
“Super PACs” in Federal Elections: Overview and Issues for Congress
Reporting 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.33
• 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
31.34
Super PACs also have to report their IEs.35 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;36
• donor information must be included for those who contributed at least $200 to
the super PAC (additional discussion appears later in this report);
• independent expenditure reports must include the name of the candidate in
question and whether the expenditure supported or opposed the candidate.37
(...continued)
32 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.
33 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).
34 The reports are due to the FEC by July 31 and January 31 respectively. See 11 C.F.R. §104.5(c)(2).
35 Separate reporting obligations apply to electioneering communications.
36 See, for example, 2 U.S.C. §434(g).
37 2 U.S.C. §434(g)(3)(B).
Congressional Research Service
12
“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
Approximately 80 organizations quickly formed in response to the 2010 Citizens United 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.38 Just 10 super
PACs accounted for almost 75% of all super PAC spending in 2010.39
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.
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 2010.40 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.
38 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.
39 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.
40 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
13
“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 super PACs
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.41
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).
41 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
14
“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
Total Independent Expenditures
AMERICAN CROSSROADS
$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
15
“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. Al 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.42
Table 3. Overview of Campaigns Affected by 2010 Super PAC
Independent Expenditures
Support or
Chamber Party Oppose Total
Spent
HOUSE DEMOCRATIC OPPOSE
$6,062,723
SUPPORT
$2,869,324
REPUBLICAN
OPPOSE
$9,239,555
SUPPORT
$1,813,919
SENATE DEMOCRATIC OPPOSE
$20,525,502
SUPPORT
$1,246,055
REPUBLICAN
OPPOSE
$11,257,357
SUPPORT
$7,060,514
42 It should be noted, however, that some IEs ran in primary contests.
Congressional Research Service
16
“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
Democrats
30.3%
Opposed
Republicans
46.2%
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 dol ar amounts spent, not number of expenditures. The figure excludes IEs made in opposition to a third-
party House candidate (CO-4).
Congressional Research Service
17
“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 dol ar 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.43
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 4.44
43 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.
44 These are the CO Senate through AK Senate entries on the left side of the figure.
Congressional Research Service
18
“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
Super PAC Spending on Independent Expenditures
Total
As a % of Total
Candidate
Total Spent on
Favoring
Favoring
Candidate
Race
Spending
Super PAC IEs
Democrats
Republicans
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%
Congressional Research Service
19
“Super PACs” in Federal Elections: Overview and Issues for Congress
Races
Super PAC Spending on Independent Expenditures
Total
As a % of Total
Candidate
Total Spent on
Favoring
Favoring
Candidate
Race
Spending
Super PAC IEs
Democrats
Republicans
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 third-party 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
7 groups. As the table shows, however, the Colorado case was atypical. In most races, super PACs
spent less than 20% as much as candidates.
Congressional Research Service
20
“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 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 affect 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.
Policy Approaches
As noted previously, despite Citizens United and 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
Congressional Research Service
21
“Super PACs” in Federal Elections: Overview and Issues for Congress
matter to the FEC’s regulatory discretion.45 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
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.
• 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
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, 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.
45 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.
Congressional Research Service
22
“Super PACs” in Federal Elections: Overview and Issues for Congress
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).46 Particularly as the 2012 elections approach, some observers have raised questions
about whether super PACs are 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.47
• 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.48 Media
reports (and, it appears, popular sentiment) sometimes characterize these entities,
despite their status as unique political committees or political organizations, as a
single group. Questions have also emerged during the 2012 cycle about whether
some large contributions—that would be prohibited if they went to candidate
campaigns—have 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.49
46 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.
47 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.
48 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.
49 Comedian Stephen Colbert announced in a recent Colbert Report broadcast that he was forming a “shell corporation”
to funnel funds to his super PAC. This model has also been reported with other organizations.
Congressional Research Service
23
“Super PACs” in Federal Elections: Overview and Issues for Congress
• Because super PACs are prohibited from coordinating their activities with
campaigns, Congress might or might not feel that gathering additional
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” 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.50 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 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 primary focus on multiple
candidates or single candidates.
• Recent 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
2011, the FEC announced that, in response to an agreement reached in a recent
court case (Carey v. FEC51), the agency would permit 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.52 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
50 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).
51 Civ. No. 11-259-RMC (D.D.C. 2011).
52 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.
Congressional Research Service
24
“Super PACs” in Federal Elections: Overview and Issues for Congress
organizations or corporations, or groups of individuals) to engage in unlimited
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.53 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 coordination54 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.55
• 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 non-
election years, information about potentially significant fundraising or spending
activity might go publicly unreported for months at a time. For example, Stephen
Colbert’s super PAC, which is receiving regular media attention on Colbert’s
nightly television program and appears to have a widespread following, is not
required to file its next disclosure report until January 2012.
• Given the preceding points, a policy question for Congress may be whether the
implications of the current reporting requirements represent “loopholes” that
should be closed or whether existing requirements are sufficient.56 If additional
53 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.
54 See, for example, 11 CFR §109.20-11 CFR §109.23.
55 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.
56 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
(continued...)
Congressional Research Service
25
“Super PACs” in Federal Elections: Overview and Issues for Congress
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.
Super PAC Activity Could be Far More Substantial in 2012 Than in 2010.
Regardless of whether Congress chooses to conduct oversight or pursue legislation on the super
PAC issue, indications thus far suggest that super PAC activity in 2012 could be substantial.
• As of this writing, approximately 250 super PACs had registered with the FEC—
about twice as many as registered for the 2010 election cycle. Registration alone,
however, does not guarantee that a super PAC will engage in substantial IEs. In
fact, in 2010, approximately 20% of super PACs reported making no IEs.57
• As the data presented above suggest, it is possible that a hierarchy of super PACs
will emerge over time, in which a relatively small number of organizations are
responsible for most activities.
• Spending surrounding campaigns typically increases during presidential election
years compared with congressional election years. In addition to activity in 2012
congressional elections, super PACs have already mobilized for the presidential
contest.
• The data presented above suggest that, in absolute terms, candidates were not
outspent by super PACs in 2010. Particularly given the small number of groups
that chose to make IEs in individual races, however, it is conceivable that super
PACs might overwhelm candidates in some circumstances—particularly if
several super PACs decided to spend substantial sums supporting or opposing a
single candidate.
• Even if 2010 super PAC activity is regarded as modest, it is noteworthy that in
less than 10 months between the Citizens United ruling and the 2010 elections,
almost 80 super PACs were able to organize and assemble more than $60 million
in IEs. For 2012, groups on both sides of the political spectrum appear poised to
raise and spend substantial sums.
(...continued)
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
Election Commission, “Rulemaking Petition: Independent Expenditure Reporting,” 76 Federal Register 36000, June
21, 2011. As of this writing, the matter is unresolved.
57 This figure is based on CRS analysis of the 2010 IE data cited previously.
Congressional Research Service
26
“Super PACs” in Federal Elections: Overview and Issues for Congress
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 be particularly relevant
in 2012, as super PACs compete 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.
Congressional Research Service
27
“Super PACs” in Federal Elections: Overview and Issues for Congress
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.58
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 E59); 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 time-
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.
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.
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 1,200 made by organizations that had notified the
commission of their super PAC status.60 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
58 In particular, this included FEC disclosure database analyst Paul Clark.
59 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.
60 The remaining IEs were reported by entities such as traditional PACs, parties, or individuals.
Congressional Research Service
28
“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.
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
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 oppose) 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.
Author Contact Information
R. Sam Garrett
Specialist in American National Government
rgarrett@crs.loc.gov, 7-6443
Congressional Research Service
29