Its opponents deride its existence as a farce upon campaign finance law. Its supporters suggest that it is the only way to set the system straight. News of it has reached the public’s consciousness, rarified air for anything in the field of campaign finance. And we’re not even talking about Citizens United.
The Federal Election Commission’s recent decision permitting comedian Stephen Colbert to form his own Super PAC has successfully turned the media’s (and to a certain extent, the public’s) attention to the post-Citizens United world of political donations.
How did Super PACs make it onto the comedian’s radar in the first place? The decision in Citizens helped create a loophole allowing unlimited funds from corporations, unions, and individuals to go to outside groups advocating for or against a candidate. Since these decisions in the summer of 2010, 84 such organizations have exploited the gap in the law. These groups, officially known as independent expenditure only committees, have free reign over how and where the money is directed. And since July 2010, they have exercised this prerogative with great frequency, catching the eye of the Comedy Central funnyman and inspiring him to parody the others with his own faux “Americans for a Better Tomorrow, Tomorrow.”
“Colbert’s stunt undoubtedly brought attention to Super PACs, which can raise unlimited amounts of money but cannot coordinate with actual campaigns,” said Kyle Kondik, a political analyst at the University of Virginia Center for Politics. “We’re seeing these groups pop up on both sides of the aisle, and who can blame them? It’s an arms race that both liberals and conservatives are trying to win.”
Public opinion on Citizens United prior to this past summer has been overwhelmingly negative, yet also overwhelmingly uniformed. A January 2011 poll conducted by Hart Research Associates showed that 79 percent of Americans are in favor of a constitutional amendment to overturn the decision. That same poll showed that only 22 percent of voters had previously heard of the decision.
If Mr. Colbert is able to bring the discussion closer to the national consciousness, he might play a role in jump-starting a closer look upon campaign finance laws of individual states. The extreme variance in state law makes the issue ripe for potential political movements.
According to the National Council on State Legislatures, six states (Illinois, Missouri, New Mexico, Oregon, Vermont, and Virginia) currently have no contribution limits at all for any class of individual, party, or corporation. Seven states (Alabama, Indiana, Iowa, Mississippi, North Dakota, Pennsylvania, and Texas) have minimal limits, usually on corporations. On the other side, states like Arizona, Colorado, Massachusetts, and Montana maintain very strict limitations on donations, capping individual donations as low as $500 per candidate and barring all contributions from corporations.
If public opinion on campaign finance were to continue to harden on the issue, reform efforts in the individual states could potentially follow. And what if Super PACs begin involving themselves in state contests? The conflict between Citizens and the laws of states who bar corporate contributions could lead to flared tempers and the potential for a legal minefield.
Opponents of the Citizens decision have argued that the decision has flooded the electoral process with massive amounts of unrestricted donations that proponents of regulation warn will lead to corruption. The numbers, they argue, are already staggering: The Center for Responsive Politics reports that over $65 million has been raised by registered Super PACs since last summer. Without an avenue to overturn the Citizens decision short of constitutional amendment, the opponents might have better luck changing state elections in their favor.
The arguments in favor of the Citizens decision are not without support themselves. Two of the central philosophical tenets of the opinion have found their way into arguments in support of Super PACs. In the Opinion for the Court, Justice Kennedy explained that requiring FEC permission for speakers to run ads amounts to prior restraint, and that corporations should not be restricted in their speech due to their financial capability. It is not unfathomable that efforts to loosen campaign finance laws in the more restrictive states could counter similar efforts on the other side.
The real test for Super PACs will come next year, when the presidential race brings its billion dollar expenditures to the table. $65 million raised will soon become a distant and wistful memory. Public opinion could be intensified even more when that figure jumps up, especially if Mr. Colbert has something to say about it (and he will).
This is where Mr. Colbert plays his biggest role in the debate. Through his comedy (and his legion of fans known as the “Colbert Nation”), he has started a real discussion of the issue. An ad he ran during the Iowa caucus parodying Super PAC’s and Rick Perry’s name has become a viral favorite. Countless news outlets have covered and debated his Super PAC. Rarely has campaign finance law been the topic of scuttlebutt and water cooler conversation; but it seems that whatever Mr. Colbert deems relevant these days becomes so overnight.
Either way, for those states with extremely lenient or limiting campaign finance laws, the debate might be coming to a statehouse near you very soon, and it won’t be very funny at all.
Joe Figueroa is a first-year student at William & Mary Law School.