Super PACs Turn Two Years Old

Arlington, Va.—Most two-year-olds can’t speak, and yet this two-year-old has expanded free speech across the nation, changed the face of the Republican primaries, and dealt a huge blow to those who would use government power to restrict political discourse. Monday, March 26, 2012, marks the second anniversary of the D.C. Circuit Court of Appeals landmark ruling in SpeechNow.org v. Federal Election Commission, the court decision that officially cleared the way for the creations of so-called “super PACs.” As proponents of campaign finance restrictions continue to criticize these groups, the Institute for Justice (IJ) defends SpeechNow.org and super PACs as important expansions of free speech.

SpeechNow.org was a group of political activists who wanted to pool their money to advocate for or against candidates based on the candidates’ support for the First Amendment. Although individuals acting alone have long been allowed to spend an unlimited amount on this kind of advocacy, individuals who wished to pool their money to fund political messages were limited to contributing only $5,000 each.

“Before SpeechNow.org, George Soros or Bill Gates could spend an unlimited amount on political ads, but if you got together with your neighbor to do the same thing you were limited to spending $10,000 total,” said IJ Senior Attorney Steve Simpson. “That made absolutely no sense. The Constitution protects both the right to speak and the right to associate. If one person is allowed to speak without limits, two or more people should have that same right, which is what the court recognized in SpeechNow.org.”

SpeechNow.org and its members, represented by IJ and the Center for Competitive Politics, challenged the federal limits in February 2008. On March 26, 2010, the full D.C. Circuit Court of Appeals unanimously held that the limits were unconstitutional as applied to groups like SpeechNow.org, which make no contributions to candidates and spend their money solely on independent political ads. Since then, nearly 300 similar groups—dubbed “super PACs” by the media—have registered with the Federal Election Commission.

“Super PACs have been a boon for voters,” said Simpson. “Thanks to super PACs, candidates in the Republican primaries are being forced to address hard questions about their policies and backgrounds, and voters are able to cast a more informed ballot. Super PACs have made the primary race a contest, not a coronation.”

Although opponents of super PACs often associate those groups with the Supreme Court’s ruling in Citizens United v. FEC—the 2010 ruling that permitted corporations, unions and nonprofits to spend money on political advocacy—it was, in fact, SpeechNow.org that ushered in the way for super PACs. Disclosure data shows that a majority of contributions to super PACs come not from corporations or unions, but from individual U.S. citizens, while less than 20 percent comes from for-profit corporations.

“Even though super PACs are primarily funded by individual U.S. citizens, not corporations, critics continue to tie super PACs to Citizens United because that decision is controversial,” said IJ Attorney Paul Sherman. “But SpeechNow.org would have prevailed in court and super PACs would have been created even if Citizens United never happened.”

Opponents also accuse super PACs of allowing the widespread circumvention of disclosure laws, but the facts say otherwise. A recent study by Demos and U.S. PIRG—both supporters of strict campaign finance laws—found that more than 93 percent of contributions to super PACs could be traced back to the original source.

“Critics of super PACs are desperately trying to manufacture scandals to discredit this important new form of political advocacy,” said Sherman. “But, the debate over super PACs isn’t really about corporations or disclosure—it’s about whether voters should be allowed to decide what messages they want to consider, or whether the government should decide that for them. Under the First Amendment, the answer to that question is clear.”

IJ President and General Counsel Chip Mellor concluded, “The D.C. Circuit’s ruling in SpeechNow.org vindicated our most fundamental First Amendment principles: Everyone has the right to speak, to listen, and to think for themselves. When laws limit those rights, it is the proper role of the judiciary to declare them unconstitutional. The Institute for Justice will continue to promote this sort of principled judicial engagement and to defend the right of everyone, including super PACs, to add their voices to the marketplace of ideas.”

For more information on SpeechNow.org, super PACs, and other campaign finance issues, visit IJ’s First Amendment blog, Congress Shall Make No Law, at www.makenolaw.org.

For more information on IJ’s First Amendment litigation, visit www.ij.org/FirstAmendment.