REVIVE TRUE DEMOCRACY: MINIMIZING THE EFFECTS OF SUPERPACS IN THE ELECTION PROCESS.

Author:Joseph, Christopher D., Jr.
 
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TABLE OF CONTENTS INTRODUCTION I. Part One: Painting the Picture A. Super PAC Definition, Attributes, and Restrictions B. The Legal Jigsaw: Legislative and Judicial Inconsistency II. Part Two: Citizens United and its Snowball Effect A. Citizens United: The Rift from Precedent B. Continuing Opposition between Legislature and Judiciary III. Part Three: Super PAC Aftermath and Side Effects A. Truth in Numbers B. Super PAC Controversies 1. Scandals 2. "Dark Money" Loophole IV. Part Four: Reviving Democracy--Make America Great Again 43 A. Tighten the Regulatory Grip B. Increase Political Activity of Constituents C. Improve the Election Process for Voters CONCLUSION INTRODUCTION

Sixty percent of Americans do not know the purpose or existence of super PACs. (2) This alarmingly high number is distressing given the integral role super PACs play in the American political system. Within the past decade, super PACs emerged as a significant tool for political candidates to connect with voters nationwide. As candidates travel the county in their quest for voter support, super PACs exert their political influence in a more behind-the-scenes manner as they reach the nation's constituents primarily through television advertisements. (3) As a result, voters enter Election Day with an understanding of important political issues derived not from the candidates themselves, but from the workings of super PACs. Despite its prominent role in today's political field, super PACs diminish the purity of American Democracy. Because of this, campaign finance reform can wait no longer.

Due to their unlimited amount of resources, the effect super PACs have on Election Day is undeniable and unfair to citizens. The fundamental question of super PAC involvement during campaign season is not the legality, but rather, should citizens allow super PAC involvement to influence the election process--including their individual vote? This Comment opines the answer to be a resounding no. Although the majority of Americans are not entirely privy to the existence of super PACs and the extent of their involvement, this mechanism works in plain sight--as super PACs are primarily responsible for the majority of events, commercials, and information presented to voters.

Although debates intend to highlight the ideological differences between candidates, political advertising and sponsored events are the primary tools for gaining citizen support. As a result, super PACs play a large roll in elections because they attempt to inform the citizenry of the character, ideology, and demeanor of candidates in the hopes of accumulating more voters across the nation. These attempts manifest themselves through rallies, dinners, fundraising events, and commercial advertisements across the nation. These events become pivotal for candidate exposure because they are additional tools candidates possess that act independently of their own campaigning strategy. Moreover, the candidate is not responsible for any of the costs incurred by these events, which are rather expensive; the super PACs generously pay for all expenses related to their advertisements. However, these advertisements simply aim to promote a successful incumbent or ridicule a new political face due to party affiliations. As a result, this poses a problem in American politics. Campaign finance reform will take more than an analysis of super PACs, as this political phenomenon is still fairly new and the election process contains much deeper issues. However, emphasizing the importance of increased political involvement along with progressive changes will diminish the influence of super PACs on citizens.

This Comment focuses on the emergence of super PACs in the American government system, and suggests potential strategies to weaken its power and revive true Democracy during elections. With the combination of state and citizen activity, super PAC influence will subside. Before emphasizing the significance of a super PAC during campaign season as well as an alternative to its effect, Part One defines the term and outlines its freedom and restrictions. Voters know the least about these entities that play a large role in a candidate's exposure to the nation, and this lack of knowledge prevents the citizenry recognizing the true extent of super PAC involvement within the election process. Part Two outlines the legislative history and precedent of super PACs, describing the convolution of case law and legislation that proffered the birth of the super PAC. From there, Part Two transitions into the climax of relevant decisions--Citizens United v. FEC--and its effect as binding precedent on subsequent cases. Citizens United places an undeniable mark on American case law, and its ruling provides super PACs immense power during campaign season.

Part Three provides empirical data of super PACs in political campaigns, elections, and debates--in essence, the residual aftermath of Citizens United. The presentation of data ultimately reflects that super PACs--not the candidate himself --are responsible for the advertisements of opposing candidates, its magnitude, and how super PACs are largely responsible for candidacy portrayal to the public. Part Three includes negative aspects of super PACs, including campaign scandals and loopholes that show the risks of super PAC involvement that Citizens United surprisingly rejected. As a result, the data synthesizes that although super PACs are legal entities, their cost-benefit impact on our Democratic system is negative. Finally, Part Four analyzes the involvement of super PACs within the election process, and suggests potential solutions to minimize super PAC involvement as well as a framework for the resurgence of American Democracy.

  1. PART ONE: PAINTING THE PICTURE

    A. SUPER PAC DEFINITION, ATTRIBUTES, AND RESTRICTIONS

    The term "PAC" is an abbreviation for Political Action Committee. (4) PACs raise and spend money to support political candidates who share similar ideological views or oppose the election of candidates whose views are contrary to the PAC. (5) Candidates in turn use these contributions to help their campaigns reach more voters in the quest of election through commercial advertisements. (6) Although the court system did not actively create PACs, legislation regulates PAC involvement such as the Federal Election Campaign Act of 1974 ("FECA"). (7)

    To operate lawfully, PACs must comply with various regulations, such as registering its existence with the Federal Election Commission ("FEC"). (8) Another series of regulations focuses on their monetary contributions to campaigns. For example, a PAC can contribute $5,000 to a candidate during each election, has a yearly maximum to contribute $15,000 to a national party committee, and can also contribute up to $5,000 to another PAC. (9) Moreover, an individual (i.e. a wealthy philanthropist or celebrity) can also personally donate a maximum of $5,000 to a PAC. (10) These limitations intend to create a buffer between the PACs and the candidates to prevent adverse effects such as undue influence, corruption, and a tendency of candidates to serve the PACs instead of the citizens if elected into office. PAC support proved essential in previous elections for candidates due to monetary support, and PACs played a more discreet role in many past elections. (11)

    PAC-based financing of political campaigns is a relatively new invention, as many early political candidates financed much of their campaigns with their own personal wealth. (12) This practice fell out of favor as the cost of running a successful campaign quickly became unmanageable for a political candidate to fund himself. (13) For example, the cost of Abraham Lincoln's successful presidential candidacy of 1860 cost roughly $2.8 million, whereas Barack Obama's 2008 campaign cost nearly $730 million. (14) As a result of the increasing cost, PACs became the most logical and efficient solution.

    Besides providing campaign financing, PACs also emerged as an avenue to allow candidates to reach like-minded constituents in a straightforward fashion. The first PAC appeared in 1944 when union members consolidated money to support the re-election of Franklin D. Roosevelt--a vital resource for his campaign. (15) More importantly, the pro-Roosevelt PAC reflected the constituents of America. For example, the Congress of Industrial Organizations ("CIO") formed the PAC--which was comprised of 100,000 steelworkers, 25,000 farm equipment workers, farming equipment technicians, and electricians. (16) Therefore, the CIO effectively supported Roosevelt not solely because of its monetary support, but because the PAC comprised of politically-conscious citizens from various socioeconomic backgrounds who actively engaged in the election process--the epitome of true Democratic ideals.

    Compared to the traditional PAC which traces its roots to the World War II era, (17) super PACs are a rather new concept in American politics. (18) Super PACs emerged in early 2010 (19) following the U.S. Supreme Court's ruling in Citizen's United u. Federal Election Commission. (20) This decision allowed for the creation of new entity: a PAC that could receive unlimited contributions so long as the organization did not directly align their expenditures with any political campaign or candidate. (21)

    The main difference of a "super" PAC is that it can independently spend and collect an unlimited amount of contributions from outside actors--including businesses, individuals, and unions. (22) Super PACs have this freedom to raise and expend unlimited amounts because these funds are independent expenditures. (23) Independent expenditures are not directly donated to the candidate and the candidate does not control them. (24) Since the contribution activity is completely external of candidate authority, it intends to mirror the restrictive legislation of PACs. Moreover, since super PAC expenditures are independent...

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