We Don’t Need to End Citizens United to Rein in Super PACs

The business model of American politics is clear, and it is clearly corrupt. 

The strategy of this corruption was perfected in 2024 by crypto super PACs: take out a couple of prominent opponents, support a couple of rising supporters, and recruit, if you can, a presidential candidate to support your view. The crypto super PACs leveraged that strategy to flip crypto policy in America in one election cycle from imperfect but sensible to essentially lawless. Now, with that strategy, AI super PACs are standing up hundreds of millions of dollars, intending to block the regulation of AI. If things stay as they are, then just as AI approaches the level of capability that many fear poses existential risks to humanity, we will have disabled our government from doing anything about it.

Super PACs have been a part of American politics since 2010, the year the Supreme Court decided Citizens United vs. FEC. Most think that decision was what gave us super PACs. Bernie Sanders, for example, will regularly (and rightly) decry the damage that super PACs have done to American democracy and declare we must therefore overturn Citizens United. The implication of his—and practically everyone's—argument is that only by overturning Citizens United could we ever end the scourge of super PACs. And of course, if you believe that, then all seems hopeless, because this Supreme Court is not going to overturn Citizens United.

But I would argue that Bernie is mistaken. Citizens United did not create super PACs. Super PACs were created by a lower federal court decision, SpeechNow v. FEC, which applied what it believed were the principles of Citizens United to create the super PAC. This lower court decision is to blame for super PACs. What’s more, it is plainly incorrect—though it took a few years before we got the case that would make its mistake crystal clear.

To see the mistake, however, we first must understand the Supreme Court's Citizens United decision.

In Citizens United, the Supreme Court decided that if a corporation spends its money independently of a political candidate, then there is, "by definition," no risk of quid pro quo—this for that—corruption. And because the only basis the Supreme Court had recognized for limiting political speech was the risk of quid pro quo corruption, it followed as a matter of logic that there could be no basis for limiting the size of such independent expenditures.

Most people get stuck on the first part of that account: What could it possibly mean to say that independent expenditures could not create the risk of quid pro quo corruption? Because very few believe that when a billionaire spends tens of millions of dollars to support a candidate or oppose his opponent, there isn't some sort of deal standing somewhere behind it. 

But the Court’s logic was correct, if you understand precisely what Justice Kennedy was saying. If the expenditure is independent, then there is no risk of a quid pro quo. Or put differently, if there is a quid pro quo, then the expenditures are obviously not independent. The point Justice Kennedy was making was a logical claim, not a claim about what happens in the real world. In the real world, if somebody makes an independent expenditure that is not actually independent, then the law deems that expenditure an illegal contribution, and the entity making that expenditure is liable for criminal prosecution. But in the land of logic, which is where the Supreme Court was operating when it made its decision in Citizens United, an “independent” expenditure does not create the risk of a quid pro quo—because it is “independent.” 

That logic is plainly correct. What isn’t correct is what the lower federal court thought followed from it. 

Three months after Citizens United, the DC Circuit extended the Supreme Court’s logic: if, the court held, the expenditures of a PAC are independent, then a contribution to that PAC must also be independent. Or, put more directly, if the expenditure is independent, then the D.C. Circuit held that there could be no quid pro quo involved in a contribution to the committee that made that expenditure.

This conclusion, as a matter of logic, plainly does not follow, and the reason is the difference between how expenditures are regulated and how contributions could be regulated. 

Expenditures by an independent political action committee are deemed independent only if they are not "coordinated." “Coordinated” is a legal term. The law specifies the restrictions that, if respected, render an expenditure independent. 

But there are no—and constitutionally could be no—equivalent anti-coordination regulations affecting a donor. 

An independent political action committee can police its employees to make sure they do not coordinate with a campaign. But when it receives a contribution to support its work, it has no way to know whether or how the donor has coordinated with a candidate. No rules ban, or constitutionally could ban, the coordination between a candidate and his supporters. Any such rule would be a plain violation of the free association rights that politicians must have with anybody who might support them. Thus, a logical break between a donation and the possibility of a quid pro quo could not exist, even if, following the Supreme Court, a logical break between an expenditure and a quid pro quo plainly could. 

And if this all wasn't clear in 2010, America should be grateful to former New Jersey Senator Robert Menendez for making it perfectly clear five years later. 

In 2015, Menendez was indicted for quid pro quo corruption. He was charged with a bribe: in exchange for his promising favors from the government, a rich Florida businessman promised to contribute hundreds of thousands of dollars to Menendez's super PAC. There it was: a quid pro quo involving a contribution to a super PAC, the very thing the D.C. Circuit said could not happen, happened. (Indeed, lawyers for Menendez had the chutzpah to ask the court to dismiss the indictment, arguing that the thing he was indicted for, the D.C. Circuit said could not happen.)

The Menendez crime is not a fluke. There are many cases now, increasingly common, in which donors promise large contributions to a candidate's super PAC in exchange for government favors. The whole practice of American politics has become infused with this corruption. And the ultimate question the Supreme Court must answer is whether this practice of quid pro quo corruption is protected by the First Amendment.

The case that created super PACs was never appealed to the Supreme Court. Soon after it, a number of other circuit courts followed its reasoning. They too held that contributions to independent political action committees could create no risk of quid pro quo corruption. With that principle established, super PACs took off. And as The New York Times calculated, the percentage of money in our federal election system coming from billionaires has thus multiplied, constituting .3% in 2010, and 19% in 2024,  a 63-fold increase in just 14 years.

So what can be done now? 

The people of Maine have given the Supreme Court the chance to correct this error. In November 2024, 74.9% of the voters in Maine, the largest number of people to vote for any candidate or any initiative in the history of Maine, passed an initiative that banned super PACs. Two super PACs immediately challenged that initiative, and following the decision of other courts, the District Court in Maine struck the initiative down. 

But unlike every other decision before it, the District Court acknowledged that contributions to independent political action committees could create the risk of quid pro quo corruption. Nonetheless, the judge struck the initiative . That now gives the First Circuit Court of Appeals the chance to reverse that clear mistake. And if the First Circuit reverses quickly enough, then the Supreme Court will have the chance to address a question it has never addressed: If contributions create the risk of quid pro quo corruption, do the people of Maine have the power to limit them? 

I would argue that everything in the Supreme Court's jurisprudence over the last 50 years about campaign finance suggests they do. Again and again, the Supreme Court has affirmed that if a contribution creates the risk of corruption, that contribution can be limited. No one can doubt that the contributions now flowing into super PACs pose a risk of quid pro quo corruption. And thus, if the First Circuit acts quickly enough, there is a chance to uphold the initiative and give the Supreme Court in its next term the chance to resolve it. 

I believe that if the Supreme Court applies its jurisprudence consistently, that means that by 2028, we could live in a democracy without super PACs. Bernie Sanders will have been proven wrong. Super PACs will be over, even though Citizens United will not have been overturned. But I'm pretty sure he'll be okay with that.