PACs and Super PACs in Federal Election Campaigns: Legal Framework

PACs and Super PACs in Federal Election Campaigns: Legal Framework

June 17, 2024
PACs and Super PACs in Federal Election Campaigns: Legal
Framework
Political action committees (PACs) and super PACs play
their families. Labor unions can solicit contributions from
significant roles in federal election campaigns by raising
their members and their families.
and spending money to influence elections. While PACs
have been a part of the campaign finance ecosystem for
In FEC v. Beaumont, the Supreme Court upheld the
decades, super PACs originated in 2010. This In Focus
constitutionality of the prohibition on corporations making
provides an overview of the legal origins of PACs and
direct campaign contributions from their general treasuries.
super PACs, discusses how each is regulated under federal
As the Court explained, its jurisprudence on campaign
campaign finance law, and offers considerations for
finance regulation respects congressional judgment that the
Congress.
corporate structure requires careful regulation to counter the
“misuse of corporate advantages” and that unlimited
Key Acronyms and Terms Defined
contributions can necessitate restrictions to counter
corruption.
Contribution: Money or anything of value given for the
purpose of influencing a federal election.
As a result of the 2010 Supreme Court ruling in Citizens
Electioneering communication: A broadcast, cable, or
United v. FEC, corporations and labor unions can make
satellite transmission that refers to a federal office candidate
independent expenditures and disbursements for
and is transmitted within 60 days of a general election or 30
electioneering communications directly from their treasury
days of a primary.
funds and do not need to establish PACs for such spending.
FEC: Federal Election Commission; provides civil
Against a First Amendment challenge, the Court in Citizens
enforcement of FECA.
United invalidated the FECA ban on corporate and union
spending from general treasury funds, even though the ban
FECA: Federal Election Campaign Act; body of law regulating
permitted corporations and unions to establish PACs for
campaign finance in federal elections.
such spending. As the Court explained, PACs are separate
Independent expenditure: Money spent on a
entities, and permitting corporate and union-connected
communication that expressly advocates election or defeat of
PACs to spend is not “somehow allow[ing] a corporation to
a federal candidate, uncoordinated with any candidate or
speak.”
political party.
PAC: Political action committee; a FECA-regulated political
Under certain circumstances, an individual or group of
committee that makes contributions and independent
individuals, within 10 days of raising or spending over
expenditures.
$1,000, must register with the FEC as a PAC known as a
Political committee: A group of persons that receive
nonconnected committee. Such PACs are not connected to
contributions or make expenditures aggregating over $1,000;
or sponsored by corporations or labor unions and may
required to register with the FEC and file disclosure reports.
solicit contributions from the general public, in accordance
with restrictions discussed below.
Super PAC: A FECA-regulated political committee that
makes only independent expenditures, also known as an
PACs are subject to FECA’s contribution limits, source
independent expenditure-only committee.
restrictions, and disclosure requirements. For example, an
individual is limited to contributing up to $5,000 per year to
PACs
a PAC, and a PAC is limited to contributing up to $5,000 to
a candidate per election. Further, PACs cannot accept
FECA prohibits corporations and labor unions from making
contributions from federal government contractors or from
campaign contributions directly from their own revenue
foreign nationals. FECA also requires PACs to register and
funds, i.e., general treasuries. However, corporations and
file periodic disclosure reports with the FEC, including the
unions can establish PACs to make contributions and can
disclosure of “the total amount of all receipts” and “the total
use their treasury funds to establish, administer, and solicit
amount of all disbursements” during the reporting period.
contributions to the PACs. Such corporate and labor union-
These reports are made publicly available.
connected PACs, also known as separate segregated funds,
can solicit contributions to their PACs from only a limited
Super PACs
group of individuals who are associated with the
Relying on the ruling in Citizens United, the U.S. Court of
corporations or unions. Corporations can solicit PAC
Appeals for the District of Columbia in SpeechNow.org v.
contributions from their stockholders and their families, as
FEC provided the legal underpinning for the creation of
well as from their executive or administrative personnel and
super PACs. The court determined that, in view of the
Supreme Court’s ruling that independent expenditures do
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PACs and Super PACs in Federal Election Campaigns: Legal Framework
not give rise to the risk of corruption or the appearance of
distinguishable when it is made “without any candidate’s
corruption, the government necessarily does not have an
approval (or wink or nod).” Further, in Citizens United, the
anticorruption interest in limiting contributions to groups
Court determined that independent expenditures by
that make only independent expenditures. The court held
corporations and labor unions do not create a risk of quid
that FECA’s contribution limits are unconstitutional under
pro quo corruption so long as they are not coordinated with
the First Amendment as applied to such groups. Such
any candidate or party. In sum, as a result of the Supreme
groups have since become known as super PACs or
Court’s campaign finance jurisprudence, super PACs and
independent expenditure-only committees.
other outside groups can engage in unlimited independent
expenditures so long as such expenditures are made
Since SpeechNow was decided, the FEC has issued
independently of any candidate or party.
advisory opinions providing guidance regarding the
establishment and administration of super PACs. For
Independent Expenditures and
example, the FEC has confirmed that a super PAC may
Coordination
solicit and accept unlimited contributions from individuals,
political committees, corporations, and labor unions. The
•
As defined by FECA, independent expenditures cannot
FEC has also explained that when fundraising for super
be “made in concert or cooperation with or at the
PACs, federal candidates, officeholders, and party officials
request or suggestion of” a candidate or a party.
are subject to FECA fundraising restrictions. That is, they
•
Regulations provide that a communication wil be
can solicit contributions only up to $5,000 per year from
considered “coordinated” if it is made “in cooperation,
individuals and federal PACs.
consultation or concert, with, or at the request or
suggestion of” a candidate or a party.
Key Comparisons Between PACs and Super
•
If a political advertisement is made in coordination with a
PACs
candidate or political party, it is treated as an in-kind
•
contribution to the corresponding candidate or party, or

Both PACs and super PACs are subject to FECA’s
source restrictions, including the prohibitions on
as a coordinated party expenditure, rather than an
accepting contributions from federal contractors and
independent expenditure.
foreign nationals.
•
As with other contributions, in-kind contributions and
•
coordinated party expenditures are subject to FECA’s

Both PACs and super PACs are required to register with
the FEC and to file periodic disclosure reports, which are
contribution limits and source restrictions.
made publicly available.
•
Contributions to PACs are subject to limits;
Considerations for Congress
contributions to super PACs are not.
As an increasingly prominent player in federal elections,
•
PACs are permitted to make contributions; super PACs
super PACs have drawn congressional interest. For
are not.
example, some have argued for legislation that would
strengthen the criteria for establishing coordination between
super PACs and candidates. In holding that independent
Super PACs and Independent
expenditures do not create a risk of quid pro quo corruption,
Expenditures
the Supreme Court emphasized the constitutional
The regulatory line between coordinated communications
significance of such expenditures being made without
and independent expenditures by super PACs and other
coordination with a candidate or party. Therefore, courts
outside groups is based on long-standing Supreme Court
may be likely to uphold such legislation.
precedent. In Buckley v. Valeo, the Court determined that
the First Amendment does not allow for any limits on
Current FEC regulations set forth criteria establishing when
expenditures that are made independently of a candidate or
a communication by an organization, including a super
political party, i.e. independent expenditures, because they
PAC, will be considered coordinated with a candidate or a
do not present the risk of corruption or its appearance. The
party and thereby treated as a contribution instead of an
Court reasoned that “[t]he absence of prearrangement and
independent expenditure. Congress may enact legislation to
coordination of an expenditure with the candidate or his
codify or clarify such regulations, alter such regulations to
agent not only undermines the value of the expenditure to
strengthen or lessen the criteria for establishing
the candidate, but also alleviates the danger that
coordination, or eliminate coordination criteria altogether.
expenditures will be given as a quid pro quo for improper
commitments from the candidate.” The Court has also
For further information, see CRS Report R45320,
determined that a limit on an independent expenditure
Campaign Finance Law: An Analysis of Key Issues, Recent
“heavily burdens core First Amendment expression.” In
Developments, and Constitutional Considerations for
Colorado Republican Federal Campaign Committee v.
Legislation; and CRS Report R41542, The State of
FEC, the Court announced that the “constitutionally
Campaign Finance Policy: Recent Developments and
significant fact” of an independent expenditure is the
Issues for Congress.
absence of coordination between the candidate and the
source of the expenditure. Later, in FEC v. Colorado
L. Paige Whitaker, Legislative Attorney
Republican Federal Campaign Committee, the Court
opined that the independence of such spending is easily
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PACs and Super PACs in Federal Election Campaigns: Legal Framework

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