Several months ago I wrote to argue against the constantly-repeated storyline that cast Citizens United as responsible for the explosion of SuperPacs in this election cycle. Though I have written critically about the Court’s decision, I was also skeptical of the tendency to blame the Court’s decision for all the forms of newly emerging election financing in this cycle that critics disliked. Citizens United did liberate corporate and union general-treasury funds to engage in independent election spending, but it did not otherwise change the constitutional architecture originally constructed in Buckley v. Valeo, back in 1976.
Yesterday’s disclosure filings with the FEC by the various SuperPacs give us better traction on this issue. Based on the data provided by the New York Times, my quick initial calculation suggests that the proportion of the money contributed to the major, candidate-specific SuperPacs for the Republican primaries that came from corporations versus wealthy individuals was the following: Romney (“Restore Our Future”): 23% corporate money; Gingrich (“Winning Our Future”): 0% corporate money; Santorum: 0% corporate money. I also included Rick Perry in my calculations, even though he has dropped out, because he had the second most successful SuperPac for the last quarter of 2011, and he might be thought more likely than Gingrich or Santorum to have been able to draw corporate money. The Perry SuperPac, “Make Us Great Again,” raised 25% of its money from corporations. Aggregating the figures for all four of these candidates, 22% of the money supporting Republican-candidate SuperPacs seems to have come from corporations. Compared to all the prior ungrounded speculation, that figure now provides us actual information, for the first time, on how much Citizens United and corporate money is or is not fueling the rise of SuperPacs. UPDATE: This pattern could change as move deeper into the election cycle, of course, particular when we reach the general election.
To be sure, lots of the individuals who donated large amounts are CEOs of various corporate entities. The Gingrich-supporting SuperPac is almost single-handedly being funded by the Adelson family, and Sheldon Adelson is the CEO of Las Vegas Sands Corp. But ever since Buckley, wealthy individuals could spend unlimited amounts to seek to help elect their preferred candidates. One might ask whether these CEOs are being reimbursed for their donations from the general corporate treasury in some form. I hope not and assume they are being well advised legally. For doing so might well constitute a crime.
Federal law makes it a crime to make a political contribution in the name of another. Indeed, this is the one crime in the area of federal campaign financing that the Department of Justice prosecutes most aggressively. Specifically, 2 U.S.C. Section 441f makes it a crime to manipulate the source of the actual contribution: “No person shall make a contribution in the name of another person or knowingly permit his name to effect such a contribution, and no person shall knowingly accept a contribution made by one person in the name of another person.” Reimbursement schemes are a core violation of this provision, as numerous successful criminal prosecutions have established. This provision covers direct “contributions” to candidates. There might be some uncertainty about whether “contributions” to PACs, including what are now called SuperPacs, are similarly covered. I do not know whether the Department of Justice has brought criminal prosecutions for contributions made in the name of person A to a SuperPac that are then reimbursed by some other person or entity, including the corporate general treasury. The DOJ regulations implementing 2 USC 441f do apply to contributions made to “political committees.”