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.

SuperPACs are a creation of recent court rulings that changed the way campaign finance laws work, with wide-ranging consequences. Beginning with Citizens United v FEC, the federal courts have reshaped how federal races are run. And a federal court ruling in March of this year allows SuperPACs to engage in state and local elections as well.

Citizens United v Federal Elections Commission was a court case about a non-profit entity (which called itself "Citizens United") that sought to sell a movie about a federal candidate through pay-per-view cable channels. In order to promote the movie, the non-profit wanted to broadcast ads. Because the movie was about a candidate, and the ads were to run in the days and weeks before an election, Citizens United ran up against federal law forbidding corporations to make expenditures about candidates around elections. They asked US Supreme Court to decide whether the organization could advertise its movie.

The Court’s opinion, to allow corporate spending in elections, not only overturned a century of federal law forbidding corporations from engaging in elections, it also changed the meaning of terms already in law that have created loopholes in disclosure as well as contribution limits. For example, "Independent expenditures" was a term meaning spending that was uncoordinated with a candidate. The Court declared that it meant there was no risk of corruption from such spending, and therefore no justification for regulation.

The Court ruling also gave rise to new forms of corporations that are now raising money from donors with very particular interests in what government does, while also moving the relationships between these donors and candidates outside of the public’s line of sight. There are over 500 "SuperPACs" that claim to be independent of candidates and therefore unregulated in their fundraising. But many of these "SuperPACs" are disturbingly close to individual candidates, in ways that give plenty of justification for corruption fears.

This week, ICPR will issue a series of blog posts about Citizens United, SuperPACs, and changes to campaign finance generally. First up, we’ll look at what it means to be “independent” of a candidate. Then, we’ll look at some of the “corporations” that are giving to candidates. Later, we’ll look at the implications for how best to assure the public that elections matter and campaign contributions are not merely a legalized means of bribing public officials.

ICPR testified before the Cook County Redistricting Committee May 1 to ask Commissioners to increase their efforts to engage the public in the once-in-a-decade redistricting process. While the state legislative and Chicago ward redistricting process have already concluded, Cook County's redistricting process has just begun with the holding of preliminary public hearings. Read ICPR's testimony below, and for more information, visit Cook County's Redistricting Committee website, http://redistricting.cookcountyil.gov.

ICPR testimony to the Cook County Redistricting Committee

Good evening, and thank you to the Commissioners, County staff and residents for attending tonight’s public redistricting hearing.