04/12/2012 10:44 am ET Updated Jun 11, 2012

Constitution Check: Would the Supreme Court Uphold a Ban on Super PACs Closely Linked to Candidates?

In a continuing series of posts, 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: Curbing the role of Super PACs.

The statement at issue:
"Super PACs can be made illegal. While we cannot end all super PACs, as long as the Citizens United [v. Federal Election Commission] stands, we can eliminate the type of candidate-specific super PACs being used in the presidential campaign."
--Fred Wertheimer, president of Democracy 21, in a Washington Post op-ed column, "How to stop super PACs," April 4.

We checked the Constitution, and...
One word has always turned up in a string of modern constitutional rulings by the Supreme Court loosening federal controls on campaign spending. That word is "independent." The Court, in fact, has sometimes added adjectives to it for emphasis, such as "totally" or "wholly." To get the most protection under the First Amendment, the Court has said over and over again, political spending must not be coordinated with a candidate.

If the Court sticks with that approach, Mr. Wertheimer's proposal to partially ban Super PACs would seem to have a good chance of surviving in the Supreme Court. (Of course, getting such a measure through Congress might be rather difficult, since the two parties don't see Super PACs as a problem. Opponents of such groups, though, no doubt will keep trying for restrictions.)

Existing federal campaign finance laws do seek to strictly limit a political spender's links to a candidate, by treating any money that is spent in "coordination" with a candidate or candidate organization as a contribution, subject to a strict ceiling of one donation of $2,500 for each election. But Congress has never spelled out just what "coordination" means, and the Supreme Court has hinted only that it means the opposite of "independent."

The constitutional theory behind the Court's sheltering of expenditures not linked directly to a candidacy is that they do not have the capacity to corrupt a candidate-corruption that supposedly would come if the candidate, as a future officeholder, were beholden to a major donor. The kind of corruption that the Court still won't tolerate in politics is "quid pro quo" -- that is, trading a vote at election time for a specific favor in the future from the officeholder.

As Mr. Wertheimer's column made quite plain, there are serious questions about just how independent some of this year's most prominent Super PACs actually are. He contended that they are run by close associates of candidates, their very creation is done with a wink by the candidates, they share fund-raising lists and fund-raisers, the candidates appear at PAC functions, and the PACs discuss strategies with the candidates.

Mr. Wertheimer regards each of those as a form of "coordination" under existing law, but he would like that nailed down in a specific new definition in the law. The Federal Election Commission could probably enforce such a definition even now, but that agency is frequently riven by political conflicts that at times make it unable to operate effectively.

The Supreme Court's insistence on the independence of spenders, as a condition for allowing them to lay out as much money as they like, goes back to 1976 and the decision that year in the case of Buckley v. Valeo. There, for the first time, the Court said that spending was a more direct form of making a political statement than a contribution would be, so spending had to be left free. Contributions, though, it has always said, could be limited.

Although spending grew even freer constitutionally with the Court's Citizens United decision in 2010, because there the Court struck down a flat ban on corporation and labor union spending that the Court had previously upheld, it opened that money spigot only as long as those entities spent their money independently. Lower courts have now interpreted that decision to mean that contributions to a PAC also should be freer-again, if they are independent of a candidate. The Supreme Court has not yet gone along with that development.

Because almost any form of government regulation of campaign finance is bound to draw a court challenge, it is obvious that one of the next targets will be the existing limit on coordination. The theory, of course, will be that, if political spending is a form of speech, there should be no limit on spending that "speaks" directly to a candidate who shares one's policy views.

If that theory were ultimately to prevail, then a curb on even candidate-specific PACs directly allied with candidates might not pass a constitutional test.

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.