Risks of Corruption from "Independent" Expenditures

For more than a generation, courts have agreed that it is right and appropriate to regulate campaign finance when there is a risk of corruption. The Court agrees that large contributions to a candidate will corrupt that candidate or cause voters to fear the candidate has been corrupted, and in this situation, the people's right to honest government trumps contributors' right to give money. But the flip side of that is that where there is no risk of corruption, there is no justification for limiting contributions. The US Supreme Court ruled in 2010 that so-called "independent expenditures" present no risk of corruption because they are "independent" of candidates. This is the legal basis for SuperPACs.

What it means to be "independent" of candidates is in the eye of the beholder. The definition in statute is a disclosure rule, indicating which expenditures must be reported to candidates and to the public as in-kind contributions. Statutes have long held that if a group coordinates expenditures with a candidate, that is akin to the candidate spending money from the group's budget, and so the expenditure must be reported to the candidate and listed on the candidate's disclosure forms. If the expenditure was not coordinated with the candidate, it need not be reported to the candidate; the legal term for this is "independent expenditure."

Are there transactions between candidates and interest groups that a reasonable person would see as actual or possible corruption, other than where the candidate and interest group actively coordinate expenditures? Since 2010, courts have used a new understanding of "independent" to justify abolishing limits, eviscerating disclosure and fostering actual or perceived corruption. SuperPACs have engaged in a host of activities and behaviors that would call into question the separation between the PAC and the candidate, even as they claim not to coordinate expenditures.

• SuperPACs are now routinely identified in the press as being closely associated with particular candidates.
• Contributors to SuperPACs have avowed their support not just for the SuperPAC and its ostensible goals but also for the particular candidate the SuperPAC supports.
• SuperPACs are founded, staffed, and run by people with long personal and professional connections to the candidate they purport to be separate from.
• SuperPACs have featured candidates at their fundraising events.
• SuperPACs have targeted fund-raising appeals to a candidate’s supporters who have given the legal maximum directly to the candidate, with a clear understanding that the money will be used to support that candidate in the next election.
• SuperPACs have shared office space and media consultants with candidates.

SuperPACs today are far more tightly entwined with candidates than the plaintiffs in any of the cases that gave rise to them. No SuperPACs existed prior to the Citizens United ruling, and these fact patterns were not available for the Court's consideration. But even casual observers can now see risks of corruption in their activities. ICPR believes that groups that claim to present no risk of corruption should be far removed from candidates. Simply asserting that they do not coordinate expenditures is not enough to prevent actual or perceived corruption.