JURIST Guest Columnist Danielle Rudisill, Stetson University College of Law Class of 2013, argues for increased regulation regarding campaign finances…

While the US Supreme Court has ruled a number of times that contributions to political parties can be constitutionally censored, perhaps the Court should look at the policy concerns that arise from its most recent decisions. The Supreme Court needs to realize that donations to political campaigns should be controlled by means other than censorship. Arguably, one of the biggest problems that has surfaced is the existence of super political action committees — better known as “super PACs.” Super PACs have raised millions upon millions of dollars but an array of questions surrounds them. For instance, what are super PACS really about? What are the actual numbers dollars being raised? What do super PACs truly do? Are they a help or a hindrance to the campaigns? And, most importantly, are super PACs overshadowing campaigns, prohibiting the candidates from running for office in a head-to-head manner?

According to the Center for Responsive Politics, in the 2012 presidential race over $380,000,000 have been raised by super PACs and $330,000,000 have been spent. Millions more have been raised for Senate and House seats. For both the Virginia and Wisconsin Senate races alone, over $17,000,000 have been raised for each seat. To put these numbers into perspective, consider that while super PACs have spent over $330,000,000, political parties themselves have only spent $110,000,000. These additional funds come from individuals, corporations, unions and other groups. Currently, there are 927 super PACs. Restore Our Future is the largest super PAC, having raised approximately $97,000,000 million and spent $88,000,000 million. American Crossroads and Priorities USA Action have both spent a little over more than $40,000,000 each. In addition, there are 31 other super PACs that have spent over $1,000,000. According to the Wall Street Journal, super PACs can raise as much money as possible and spend it however the they choose as long as there is not coordination with political campaigns. This means that the super PACs can run advertisements for or against political candidates. Many of the super PACs use funds for both support and opposition advertisement but quite a few use their expenditures solely for one or the other. For example, Priorities USA Action uses its expenditures only for opposition whereas Florida New Majority and Our Destiny PAC only use funds for support advertisements.

Since the super PACs use their expenditures to support or oppose a candidate, the general public sees the support or opposition of the super PACs. This may seem like a circular statement but there is a deeper meaning. Of course the public sees the advertisements on television and hears the radio blurbs, but the question is whether the general public actually realizes that these advertisements originate from super PACs. Each expenditure that reaches the public does have to follow certain guidelines. For instance, on Restore Our Future’s website, a blurb at the bottom reads: “[n]ot authorized by any candidate or candidate’s committee.” Still, does the public know that super PACs are influencing them to vote for a certain candidate? And, whether or not they know, is this influence acceptable?

The following are prime examples for the 2012 presidential elections. Restore Our Future says the following:

There is only one candidate who has the experience to stop the reckless spending, and bring down our national debt. That candidate is Mitt Romney. Mitt Romney has an unquestionable record of cutting spending, reducing debt, and creating jobs. As Governor of Massachusetts, Mitt Romney used his veto power more than 800 times to stop wasteful spending. Romney also eliminated a $3,000,000 deficit without borrowing money or raising taxes. By the end of his term as governor, Romney created a $2,000,000 rainy day fund. Help Mitt Romney become our next president.

The Priorities USA Action website states:

We are at the forefront of efforts to draw clear contrasts between progressive policies and those of the far right. We are committed to the reelection of President Obama and setting the record straight when there are misleading attacks against him and other progressive leaders.

These are blatant support statements made by these super PACs. As for opposition statements, here is a partial radio advertisement by Priorities USA Action:

ANNOUNCER: Romney is a millionaire who uses loopholes to pay a lower tax rate than many nurses or police. Romney’s plan makes middle class families pay more — $2,000 a year — while giving multi-millionaires a tax cut of $250,000. Mitt Romney’s just not looking out for us.

Conversely, American Crossroads says:

In 2012, America will choose between President Obama’s politics of permanent decline and a new era of strength, security and growth … Now, Americans are joining together to say that Barack Obama’s blame game is over. It’s time for accountability and results.

The previous examples of support and opposition statements and advertisements demonstrate just how overt the super PACs are in their mission to elect a certain candidate to office. The super PACs are not known for their discreetness. And, truthfully, the only time that the general public knows whether the advertisements are from super PACs or campaigns are at the very end of the advertisements or at the bottom of the television screen.

As Buckley v. Valeo states, independent expenditures cannot be coordinated with the campaign. Therefore, the super PACs are spending literally hundreds of millions of dollars on expenditures that by definition cannot coordinate with the Republican and Democratic campaigns. This means that while the super PACs might be aligning themselves correctly with the candidate they want to support, they might also be suggesting the wrong cause and may mislead voters into thinking the candidate believes a certain way or wants a certain result when that is not the case. For instance, Freedom Works for America, while considered a conservative super PAC, has explicitly stated in its description that it supports freedom regardless of whether it has to spend money against incumbent Republicans. With this type of attitude, there is no large leap that one must jump to see that the super PACs and the candidates do not necessarily coincide with each other. Another example is the Service Employees International Union (SEIU). The SEIU has spent over $8,000,000 promoting liberal candidates. But the SEIU is the “fastest-growing union in North America.” It is only natural that the union will be promoting labor relation ideologies. This may or may not coincide with the liberal candidates’ platforms.

Republican candidate Mitt Romney and US President Barack Obama are running for president. Restore Our Future and Priorities USA Action are not. The point is that the political candidates who are running for office are being overshadowed by the super PACs. At the very least, the candidates have to share the spotlight with the super PACs. The candidates have the ability to raise more money than the super PACs and they have indeed done this. However, that does not negate the fact that super PACs have an easier time raising money and creating advertisements. The super PACs are allowed to raise unlimited amounts of funds while the political candidates have to fight begging each American citizen for a small amount of funds. And while the candidates are busy debating, attending rallies and pleading for funds, the super PACs spend unlimited amounts of money supporting causes that may or may not align with the candidates’ causes.

The Supreme Court says this is the constitutional way to run a political campaign, but is it really? Did the Supreme Court actually envision that super PACs would overshadow the political campaigns and find that overshadowing satisfactory? Surely, a reasonable person would question whether the Supreme Court had this intention. This 2012 presidential election race between Romney and Obama is the first high-stake race since the formation of super PACs through Citizens United. The onslaught of advertisements and other expenditures by super PACs this election might make the Supreme Court realize that political candidates should be in control of representing their own political campaigns.

Danielle Rudisill is a member of the Stetson Republicans, Federalist Society and Business Law Society.

Suggested citation: Danielle Rudisill, More Campaign Finance Monitoring and Super PAC Transparency Needed, JURIST – Dateline, Nov. 3, 2012, http://jurist.org/dateline/2012/11/danielle-rudisill-campaign-finance.php