The supposed legal basis for super PACs originates from a ruling in the U.S. Court of Appeals for the District of Columbia Circuit. That ruling called SpeechNow.org v. FEC supposedly permitted independent only expenditure groups to receive unlimited donations despite individual contribution limits.
The Court cited the Federal Election Campaign Act (FECA) which reads:
FECA defines “independent expenditures” as expenditures “expressly advocating the election or defeat of a clearly identified candidate” that are “not made in concert or
cooperation with or at the request or suggestion of such candidate, the candidate’s authorized political committee, or their agents, or a political party committee or its agents.”
Super PACs go on to quote the FEC in its
advisory opinions as to how to interpret FECA and how to operate an independent expenditure group.
Does anyone notice a problem? The FEC, the group that is supposed to enforce campaign law is rendering opinions, on how to interpret the law. That isn't the role of the Executive Branch and the FEC.
That roll belongs to the Courts. Further when you really come right down to it, there is logically no such thing as an independent expenditure made by a group. Groups don't receive any money from contributors unless the contributor believe the money will be spent in the manner they desire.
Campaign contributions are 100% dependent upon the type of expenditures the super PAC intends to make. If there is no understandings between contributor and receiver, then no money changes hands.
That connection renders an individual's contribution to a group as good as if made directly. Hence it is subject to individual limitations and disclosure.
That is exactly why there is a lawsuit against super PACs, other 527 groups, and their donors.
What was the intention of Congress when it passed FECA?
If you answered includes any mention of limiting campaign contributions, then super PACs have a problem. Giving directly to a candidate or to a super PAC has similar effects of electing the candidates of the contributor's choice.
Therefore, the Courts will rule against super PACs as they already have done so against the National Organization for Marriage on January 31, 2012.
The lawsuit is a defendant class action suit reaching back the full 5 years prior to filing and encompasses those making contributions this election season.
Philip B. Maise
Plaintiff