Who Sold Us This Idea? · Campaign Finance Superpacs
Campaign Finance Superpacs
In 1971 a Yale law professor writing for the American Enterprise Institute argued that spending money on politics is speech. Over the next 39 years the courts agreed, one case at a time, until 2010 gave us the super PAC. Move the idea through the people who carried it, and watch what presidential campaigns spent.
Who thought of the idea?
Slide through time, drag the blue idea across the map, or use the arrow keys. Each bubble is sized by the figure in the chart below at that point: a ~ marks an estimate and ? means no data yet. Lanes are kinds of institutions. Solid lines hand the idea straight to the next carrier; dashed lines are a push in parallel.
?
$50 million
What presidential campaigns spent
Total spent by every presidential candidate’s campaign in each election, from the Federal Election Commission. This counts the candidates’ own committees only; super PACs and party spending come on top. The FEC’s 2024 total counts the shared Biden and Harris committee twice and leaves out Trump’s main committee, so 2024 is corrected here and drawn hollow. 2020 includes Michael Bloomberg’s self-funded primary run.
The idea came firstWinter’s argument for the American Enterprise Institute came in 1971, before the post-Watergate limits it attacked. It took the courts 39 years to get from there to the super PAC.
Left and right togetherBuckley’s plaintiffs ran from Eugene McCarthy, the antiwar Democrat, and the Socialist Workers Party to the American Conservative Union.
The money followedPresidential campaigns first passed $1 billion in 2008, by the FEC’s count, and spent $4.1 billion in 2020. That is the candidates alone, before super PACs.
Context: the research notes
The first idea: limit money in politics
- 1907Congress, the Tillman Act
Bans corporate contributions to federal campaigns. MTSU
- 1947Congress, over President Truman's veto
Taft-Hartley bans union contributions and restricts corporate and union election spending. New World Encyclopedia
- 1971Congress, the Federal Election Campaign Act
Caps how much campaigns spend on advertising and expands disclosure. MTSU
- 1974Congress after Watergate; President Gerald Ford
Caps individual gifts at $1,000 per election and committee gifts at $5,000, limits spending, and creates the Federal Election Commission. FECA Amendments of 1974
The counter-idea: money is speech
- 1971Ralph K. Winter Jr., Yale Law School, for the American Enterprise Institute
“Money, Politics and the First Amendment,” in an AEI volume arguing the constitutional case against limits. Catalog record
- 1973Ralph K. Winter Jr. with John R. Bolton, American Enterprise Institute
Campaign Financing and Political Freedom, written against the limits Congress was passing. Bolton later called Winter the intellectual father of the arguments the Court accepted in Buckley. Catalog record, Econlib, Election Law Blog
- 1975Sen. James Buckley, Eugene McCarthy, Stewart Mott, the New York Civil Liberties Union and others
A left-right coalition, from the American Conservative Union to the Socialist Workers Party, sues to strike down the 1974 law. Winter argues it. Buckley v. Valeo, Winter's account
- 1976The Supreme Court, Buckley v. Valeo
Spending money on elections is protected speech. Spending limits fall; limits on contributions to candidates and disclosure survive. Britannica
- 1978Justice Lewis Powell, First National Bank of Boston v. Bellotti
Corporations may spend on ballot questions. Seven years earlier Powell had written a memo urging the U.S. Chamber of Commerce to organize business politically and in the courts. Bellotti, Washington Monthly
When it took off
- 1991Chip Mellor and Clint Bolick, Institute for Justice; Charles Koch
A libertarian public interest law firm, started with Koch seed money. It later wins the case that creates super PACs. Philanthropy Roundtable
- 2001 to 2005Bradley Smith
His book Unfree Speech argues limits do more harm than good. He chairs the Federal Election Commission, then founds the Center for Competitive Politics (now the Institute for Free Speech). Publishers Weekly, Institute for Free Speech
- 2008David Bossie, Citizens United; lawyers James Bopp Jr. and Ted Olson
Hillary: The Movie is blocked as campaign advertising under the McCain-Feingold law. The group sues. Reason, CS Monitor
- Jan 2010Justice Anthony Kennedy, Citizens United v. FEC (5 to 4)
Corporations and unions may spend without limit on independent political ads. Cato and the Institute for Justice back Citizens United; Senators McCain and Feingold back the FEC. Cato brief, McCain-Feingold brief
- Mar 2010David Keating, SpeechNow.org; the Institute for Justice and Bradley Smith's center
A federal appeals court rules 9 to 0 that groups spending independently can raise unlimited money. The super PAC is born. Institute for Justice
- 2010Karl Rove and Ed Gillespie
American Crossroads, a super PAC, and Crossroads GPS, a nonprofit that mostly keeps its donors secret. Together they raise $123 million by the end of 2011. Center for Public Integrity
When it accelerated
- 2014Shaun McCutcheon and the RNC; Chief Justice John Roberts
McCutcheon v. FEC (5 to 4) removes the cap on how much one donor can give in total across candidates and parties. Public Citizen
- 2020 to 2024The cost of federal elections
About $15.1 billion in 2020 and $8.9 billion in the 2022 midterms. OpenSecrets projected at least $15.9 billion for 2024, with outside groups on track to pass $5 billion. CNN via KRDO, OpenSecrets via ZNetwork
The case for the defense
- Spending money is how political speech reaches people. Citizens United began with a documentary about a candidate that the law barred from being shown. Citizens United and its supporters, source 17
- Super PACs must disclose their donors. The secret money runs through nonprofits like Crossroads GPS, which is a disclosure problem, not a super PAC problem. Center for Public Integrity reporting on Crossroads, source 22
- Money does not simply buy elections. In 2024 Harris’s campaign outspent Trump’s about two and a half to one, and lost. FEC committee totals, source 24
Sources
- FEC Act of 1971, MTSU First Amendment Encyclopedia
- Taft-Hartley Act, New World Encyclopedia
- Federal Election Campaign Act Amendments of 1974
- Winter, Money, Politics and the First Amendment (AEI, 1971), catalog record
- Winter and Bolton, Campaign Financing and Political Freedom (AEI, 1973), catalog record
- Econlib, Ralph K. Winter Jr., RIP
- Election Law Blog, John Bolton on Buckley at forty
- Buckley v. Valeo
- Ralph K. Winter, reflections on Buckley (Yale)
- Britannica, Buckley v. Valeo
- First National Bank of Boston v. Bellotti
- Washington Monthly on Buckley and the Powell memo (opinion)
- Philanthropy Roundtable, Institute for Justice
- Publishers Weekly, Unfree Speech
- Reason, Prof. Smith Goes to Washington (2001)
- Institute for Free Speech, SpeechNow.org v. FEC issue brief
- Reason, Hillary: The Movie: The Lawsuit (2008)
- CS Monitor, Now showing: Hillary: The Movie (2008)
- Cato Institute, Citizens United brief
- Campaign Legal Center, brief of Senators McCain and Feingold
- Institute for Justice, SpeechNow.org ruling (2010)
- Center for Public Integrity, Crossroads funded mostly by secret donors
- Public Citizen, McCutcheon v. FEC
- FEC, candidate and committee totals (API)
- FEC, Spending: by the numbers
- CNN via KRDO, OpenSecrets 2024 spending projection
- NBC News, Harris campaign spending after the election
- Center for Public Integrity, Buckley v. Valeo