Jeb Bush at the campaign rally in which he formally announces his candidacy for the 2016 presidential election [1].

The United States is undeniably tied to its democratic foundation. In 2024, however, the structures that enable democracy are becoming increasingly undemocratic. Undemocratic campaign funding laws and the role of “Super PACs” are to blame. Although a legal framework for regulating Super PACs exists—led by the Federal Election Commission (F.E.C.)—there are glaring loopholes and work-arounds candidates for public office exploit year-after-year, particularly surrounding what it means for a Super PAC to “coordinate” with a candidate.

Super PACs are political action committees which can raise an unlimited amount of money to support or run against a candidate. They are the organizations which help create advertisements and organize events to help a certain party or candidate gain support and attention from the American public. As of February 2024, 1,918 groups have formed Super PACs and have reported a cumulative spending of $963,295,517 for the 2024 presidential election [2]. Understanding both the legal and historical background behind Super PACs can ensure these organizations no longer abuse their unlimited spending power.

Before Super PACs existed, political action committees played a similar role in independently supporting candidates as they ran for office. Political action committees, unlike Super PACs, were not able to accept money from corporations, and had heavy restrictions on the amount of money they could spend and receive. The rework of F.E.C. law was driven by two court cases: SpeechNow v. F.E.C. and Citizens United v. F.E.C. [3]. SpeechNow v. F.E.C., settled in 2010, was the catalyst behind the formation of Super PACs. The Court decided that limiting individuals’ contributions to SpeechNow.org violated the First Amendment of the Constitution. Meanwhile, Citizens United v. F.E.C. ruled against the previous precedent of Austin v. Michigan State Chamber of Commerce to enable independent expenditures by corporations associated with a political action committee [4].

These two cases revamped the structure of campaign funding to allow corporate influence and unlimited “uncoordinated” independent expenditures, giving rise to “Super PACs.”

Limiting the absolute influence and power of Super PACs, the F.E.C. remained adamant on restricting any form of “coordination” between the candidate and the Super PAC. Initially, the F.E.C.’s definition and framework for evaluating “coordination” in a given campaign transaction was reliant on 3 items in a given situation: the origin of the payment, whether the content produced was an electioneering communication, and whether there is communicative evidence of coordination prior to an action by the Super PAC. Despite the framework SpeechNow v. F.E.C. and Citizens United v. F.E.C. generated, the F.E.C.’s definition of “coordination” is relatively weak, leaving ample room for candidates to skirt the law. For example, the F.E.C. had not specified any restriction on who a PAC can employ or whether the law applied to prospective candidates or only declared candidates.

Since 2010, Super PACs have openly worked with candidates to gain an advantage in the American political system. The most significant ways Super PACs skirt F.E.C. regulations are through strategies that allow implicit coordination, such as “testing the waters” and sharing vendors [5]. Jeb Bush’s campaign for the presidency in 2016 exemplifies each of these borderline-corrupt strategies.

By law, the F.E.C. only bans coordination between Super PACs and the current candidate for office. The legal definition of “coordination” lacks any reference to whether prospective candidates are able to coordinate with their prospective Super PAC. As a result, it is relatively common for candidates to “test the waters” prior to officially declaring their candidacy. For example, before Jeb Bush declared his candidacy for the presidency in 2016, he held $100,000 per ticket fundraisers with his PACs. Because Bush had not yet declared candidacy, he was able to coordinate and hold events with his PAC [6]. He made sure to emphasize his pre-candidacy by making clear to regulators and the public that he was not yet running for office by using precise language during his speeches such as “I have decided to actively explore the possibility of running for President.” Throughout this “testing the waters” period, Bush raised 75% of all the money used in his campaign. By the time of the election, other politicians and organizations filed over 21 complaints against Bush to the F.E.C., ranging from issues with coordination and his inability to report all the funds he raised and spent on campaigning. Although there is no evidence showing that he was always going to run for president, it is easy to speculate that Bush had not declared his candidacy to maximize the money he could raise in partnership with his Super PAC. Regardless, continuing to raise money before declaring candidacy is not indicative of a reluctance to put his name forward for the presidency. In addition to coordinating prior to declaring candidacy, Bush also implicitly coordinated with his Super PAC by sharing vendors and staff. 

Legally, a vendor is anyone who takes part in some financial transaction with some other party. In campaign funding, PACs and candidates may either hire and use similar or closely related personnel and vendors to facilitate campaign work to enable implicit coordination. Most commonly, a Super PAC will hire an individual incredibly close to the candidate the PAC is supporting to run the PAC. Whether it is a close friend or family member, the leader of the PAC will have already known the candidate’s needs and desires without having to directly communicate with them. This technically avoids the FEC’s coordination standard, and leaders of PACs are able to hire people already equipped with the knowledge to place the candidate in the best possible position to succeed. Currently, there are 632 instances where Super PACs have hired the same person or vendor as the candidate they support, a stark increase from 86 in 2014 and 161 in 2012. For Jeb Bush, his PAC and his campaign shared 75 total vendors in 2014 which includes 9 common staffers, which is the most between any candidate and PAC duo. While Bush did use this loophole, having a candidate and Super PAC share employees and staff is an incredibly common practice. More than 50% of candidates for the House or Senate have common vendors with their outside group [7]. In the current 2024 election, President Joe Biden sent the finance director of his 2020 campaign, Katie Petrelius, to lead his PAC and Former President Donald Trump has his PAC led by his former aide [8]. Sharing employees and vendors between the candidate and the Super PAC easily appears corrupt. However, according to the Supreme Court, the F.E.C. is not allowed to prosecute on the basis of appearing corrupt. The F.E.C. requires further evidence such as receipts of communication or non-independent expenditure to incite a more thorough investigation. 

While neither of these loopholes were directly caused by the changes made to F.E.C. law and regulation through F.E.C. v. Citizens United or F.E.C. v. SpeechNow, both of these strategies enhance the power of PACs given that they have the ability to spend unlimited amounts of money—which both court cases enabled. With the ability to spend unlimited amounts of money, the candidate may be able to coordinate with their PAC before officially declaring candidacy. Or, the PAC may be able to use their shared employees to ensure the funds are allocated in the best possible way. In either case, the candidate’s interests are protected and Super PACs are able to exercise the power of money to unreasonably benefit candidates by working around F.E.C. regulation. 

Intuitively, a simple solution to these campaign funding strategies would be to report the candidates to the F.E.C. However, the F.E.C. is notorious for not investigating reported cases of coordination between a Super PAC and a candidate. Bush, for example, was reported 21 times. However, reporting these candidates for “coordination” with their PAC to the F.E.C. highlights an arguably larger problem: the incompetence of the F.E.C.

The F.E.C. is the body that is supposed to enforce federal campaign finance law. However, because 4 commissioners of the F.E.C. need to vote to investigate a given case, and the FEC is an inherently bipartisan body, it is rare for the needed portion of the Commission to agree on the best course of action [9]. Consequently, the F.E.C.’s bipartisanship has led to stunted decision making. According to the finance director of the Campaign Legal Center, an organization centered around reporting issues related to democracy and law in elections, the F.E.C.’s “failure to prosecute coordination has created a culture of impunity.” In fact, the last time the F.E.C. even looked into a case of coordination was in 2004, and the overall dysfunction of the organization is to blame for coordination never resulting in any fines.

Today, presidential candidates still use Super PACs to do a similar legal hopscotch to avoid strictly breaking the law. President Biden and former President Trump, the two likely candidates for president in the 2024 election, have both benefited from the presence of their own Super PACs to help fund data-driven advertisements targeting certain groups of voters and organize events on their behalf. 

However, one candidate in the race for the Republican primary in the 2024 election has been one of the only to speak out against Super PACs in recent history. Before he dropped out of the Republican race, billionaire and businessman turned politician Vivek Ramaswamy spoke aggressively during debates and to the media about his disgust with the current campaign funding structure [10]. On numerous occasions, Ramaswamy called his opponents “Super PAC puppets” who are “bought and paid for” by organizations that are a “cancer on American politics and the Republican party.” Obviously, it is easy to make those statements from Ramaswamy’s perspective as a billionaire who could easily fully fund his own campaign. Regardless, Ramaswamy makes a fair point and argues that funneling millions of dollars towards a candidate gives them an obligation to their donors, instead of their constituents and voters. In fact, donor money is often contingent on the candidate promoting a certain agenda that supports the donor’s ventures. In these cases, running for public office can turn into a game to keep the candidate’s donors happy, causing politicians to seem ungenuine and lacking integrity. 

Regardless, campaign funding is critical. If a candidate does not have money to fund their campaign, they will not be able to afford enough campaign events to make them relevant to voters. Especially when running against known billionaires, receiving donations is, at times, candidates’ highest priority before they can attend to their voters. Of course, candidates have a choice in what they promote publicly and who they receive money from, so it is rare for a candidate to receive money from a donor who doesn’t support their agenda. And similarly, it is rare for a rich donor to give money to a candidate they do not fully support.

It is easy to believe that significantly limiting the power of Super PACs would undeniably impact the structure of campaign funding. But, it is unlikely for all problems surrounding campaign funding to be solved by restricting Super PACs. The reality is that politics is competitive. Politicians will do whatever they can to separate themselves from their opponents if they want any chance at winning. It is inevitable that politicians will find small flaws in campaign law to give themselves a competitive advantage. If Super PACs become less powerful, it is perfectly reasonable to assume that regardless of campaign funding structure, candidates will always try to bend the law. Today, it just happens that Super PACs are the organizations politicians use as a vehicle to get around spending limits.

Regardless, limiting Super PACs certainly will not harm democracy as much as keeping them as they are will. The government needs to decide whether “unlimited special interest spending” from the current structure of Super PACs is compatible with democracy. The current level of power Super PACs retain amplifies their own voices and silences those of voters. They are able to manipulate public opinion and control the public’s view of a certain candidate through advertisements, expenditures, and other independent media. But in a high-performing democracy, candidates answer to constituents, not organizations with money. For the United States to become a more competent democracy, disabling Super PACs may be one step in the right direction.