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Constitution Check: Did the Supreme Court Give Us Super PACs?

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This is another in a continuing series of posts in which Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today's topic: the Supreme Court and super PACs.

The statements at issue:

"The primary campaign would be over if not for the Citizens United decision. If Gingrich and Santorum didn't have 'super PAC' sugar daddies, they couldn't afford to run campaigns. They'd have dropped out and Romney would be cruising."

-David Brooks, New York Times columnist, in an online conversation, "Super PAC! Super Bad!" Saturday, March 3.

"The Citizens United ruling had NOTHING to do with the ability of individuals to spend their money to support candidates. That had been decided back in 1976... In Citizens United, the Court ruled that corporations and unions were entitled to the same rights."

-Dan Abrams, legal analyst, ABC News,"The Media's Shameful, Inexcusable Distortion of the Supreme Court's Citizens United Decision," commentary on the MEDIAites website, February 8.

We checked the Constitution, and...

In the midst of a lively political campaign, with big spending a big issue, even the media can get the Constitution wrong. Both the Times' Brooks and ABC News' Abrams have scrambled the actual significance of what the Supreme Court has done on campaign finance.

There is a link, but it is only indirect, between the Court's 2010 decision in Citizens United v. Federal Election Commission and the rise of super PACs, and the legality of individuals' campaign role was not settled 36 years ago -- in fact, it is still very much a work in progress.

If one believes that the Constitution means what the Supreme Court says, then the last word has not yet been said on the constitutionality of super PACs' operations: the Court has never heard a case directly focused on this new financial behemoth.

What the Court has been doing in this field since 1976 is an exceedingly complex story, but one practical fact is constant: no matter what Congress or state legislators do to try to curb what they believe to be abuses in campaign financing, political operatives always find a way around it, thus setting up fresh legal controversy. As the Court remarked in a 2003 campaign finance opinion, "Money, like water, will always find an outlet." Super PACs are the latest proof of that.

What is a super PAC, and what connection, if any, does such an organization have to the Citizens United decision?

A PAC ("political action committee") is, by legal definition, an organization that is set up mainly to engage in promoting or challenging candidates for the presidency and for Congress. It is a creature of federal law. It can be organized as a corporation -- as, for example, is Restore Our Future, Inc., the super PAC created to promote Mitt Romney's presidential candidacy for 2012. It does not have to be incorporated, however.

As a campaign organization that operates independently of any specific candidate or any political party, it can spend as much money as it wishes: it got that right directly from the Citizens United decision in 2010. But that is not what has made super PACs controversial. And the disputed part of their operations did not come from the Supreme Court; it actually came from a federal appeals court, the D.C. Circuit Court of Appeals that sits in Washington.

Since the 1976 decision in Buckley v. Valeo, the Supreme Court had given much more constitutional freedom to campaign spending by independent individuals or groups than it has to the freedom to contribute money. In other words, the money going into an independent campaign spending entity was far more restricted than the money going out.

That differing constitutional treatment was not at issue in Citizens United; that was a spending case. But, borrowing the First Amendment logic of that decision and then going further, the D.C. Court found that contributions to an independent PAC also could be unlimited.

The Federal Election Commission lost that case, but it opted not to take it on to the Supreme Court. (The independent group involved in that case, SpeechNow, an unincorporated unit of five wealthy individuals, did ask the Supreme Court to relieve it of the PAC obligations to report to the FEC and to disclose its income and outgo. The Court opted not to hear that appeal.)

The FEC followed up the SpeechNow decision with two rulings in 2010, permitting the creation of what the Commission called "independent-expenditure-only" PACs. That is the entity now popularly known as a super PAC. It must register with FEC, and report its income and outgo. It must not be formally connected to a candidate or a party.

But, as the 2012 campaign has shown, some super PACs are staffed by individuals very closely tied to specific candidates -- as with the groups backing Mitt Romney and President Obama. Controversy has arisen over how much they must report to the FEC, and some have tried to narrow the necessary separation between them and a candidate, but that has not yet succeeded.

If history is any guide, sooner or later the lawyers who usually line up on one side or the other of campaign finance disputes are sure to have a super PAC case they will try to take to the Supreme Court. In the meantime, the Court may be close to taking another look at Citizens United, and that may provide (by next year) some hints on where the Justices now stand.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.

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