THE BLOG
01/04/2012 01:17 pm ET Updated Mar 05, 2012

Serious Questions Exist About Legality of Presidential Candidate Super PACs

In a report issued today, Democracy 21 documented the serious questions that exist about the legality of the leading presidential candidate-specific Super PACs that are playing a major role in the 2012 presidential election.

The leading presidential candidate-specific Super PACs are serving as vehicles for candidates and donors to massively evade and circumvent candidate contribution restrictions. These restrictions have been enacted over a period covering more than a century to prevent the corruption of federal officeholders and government decisions - in other words to prevent the corruption of our democracy.

Each presidential candidate-specific Super PAC is raising unlimited contributions from individuals and/or from corporations and unions for the explicit purpose of being spent by the Super PAC to directly support its favored presidential candidate. Such contributions would be illegal if given directly to the presidential candidate, so they are instead being given to Super PACs controlled by close political and personal associates of the presidential candidate and which are directly serving the campaign interests of the presidential candidate.

In essence, the unlimited contributions are being given by the wealthy supporters of each presidential candidate to a Super PAC dedicated to supporting that candidate. The donors know that their contributions will be spent to directly support that presidential candidate. The Super PAC is spending the contributions only to directly support the associated presidential candidate. The presidential candidate knows (or will know) the identity of the donors who are providing huge contributions to the Super PAC supporting the candidate's campaign.

For all practical purposes, these unlimited, corrupting contributions are being given to the presidential candidates. As such, candidate-specific Super PACS are eviscerating candidate contribution limits and restoring the system of legalized bribery that existed in our country in the pre-Watergate era.

To date (and based on the limited disclosure information reported so far), individual contributions as large $2 million have been given to presidential candidate-specific Super PACs.

It strains credulity to believe that these presidential candidate-specific Super PACs sprung up on their own without some initial involvement, approval or sign-off from either the candidate for whose benefit they were established, the candidate's campaign operatives or agents of the candidate or campaign. In each case, the leading presidential candidate-specific Super PACs were established by or are being run by individuals who are closely linked with the presidential candidate.

The claim made by these Super PACs is that they are "independent" of the candidate with which they are associated and are making only "independent expenditures."

The Supreme Court has spoken in the broadest terms about the degree of independence that is necessary for "independent expenditures" to be considered free of the legal constraints that would otherwise apply to in-kind contributions. Such expenditures must be "totally independent," "wholly independent," "truly independent," and made "without any candidate's approval (or wink or nod)....," according to the Court.

If the presidential candidate or the candidate's campaign (or agents of either the candidate or the campaign) were in any way, formally or informally, involved in the formation or operation of the candidate-specific Super PAC aiding that candidate, it would defeat the "total independence" that such PACs must have, and constitute the requisite coordination to turn all of the expenditures made by the Super PAC into illegal in-kind contributions to the candidate's campaign.

The information presented in the Democracy 21 report raises serious questions about whether each of these leading candidate-specific Super PACs meets the Supreme Court standard of being "totally independent" from the candidates they are supporting, and whether each of these Super PACs meets the Supreme Court's test for independence - of being formed (or operated) "without any candidate's approval (or wink or nod)...."

To date, there is no indication that any of the presidential candidates have made a serious effort to shut down the Super PACs supporting them, or have called on their associated Super PAC to cease operations.

Candidate-specific Super PACs are the most dangerous vehicles for corruption in American politics today. They are a monstrosity and the logical extension of the Citizens United decision given to the nation by five Supreme Court Justices who have done enormous damage to our democracy.

Unless stopped, candidate-specific Super PACs will continue to eviscerate the contribution restrictions enacted by Congress, signed into law by Presidents and repeatedly upheld by the Supreme Court as constitutional because they are necessary to prevent corruption. And these Super PACs will engulf not just our Presidential elections but also our elections for Congress to which they will spread like wildfire.

The ability to determine whether any presidential candidate-specific Super PACs have violated the laws is severely hampered by the consistent refusal of the three Republican Commissioners on the six-member FEC to support any civil enforcement of the law, and by the Department of Justice being limited to bringing only criminal prosecutions.

Congress needs to pass legislation to protect the integrity of the nation's campaign finance laws and ensure that candidate-specific Super PACs are not used as vehicles to circumvent candidate contribution limits.

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