POLITICAL ACTION COMMITTEES

For political action committees (PACs) and for all other contributors to campaigns for public office, the modern constitutional era began in 1976 with the Supreme Court's decision in buckley v. valeo. In sorting out the constitutionality of the many parts of the federal election campaign act (FECA) of 1971 and 1974, the Court reaffirmed the protections of the first amendment'sfreedom of assembly and association for PACs, citing a long line of precedents that included naacp v. alabama (1958). The Court further held all campaign contributions and expenditures to be the expression of political views and thus protected by the First Amendment.

The protections of the First Amendment notwithstanding, the Court permitted much of the congressional regulation of PACs in the FECA to stand as a legitimate exercise of Congress's right to prevent "corruption or the appearance of corruption." All PAC contributions are limited to $5,000 per candidate per election. Moreover, in California Medical Association v. FEC (1981), Congress was within its constitutional powers in forbidding them to accept more than $5,000 per year from any group or individual. But because the Court in Buckley extended greater protections to campaign spending than to campaign contributions, PACs are free to pursue unregulated independent spending in campaigns—spending done, that is, without the cooperation or knowledge of the candidate being aided.

For a subset of PACs, those with sponsoring parent organizations, the burden of regulation is heavier. If a parent organization is a corporation or labor union, it is (and has long been) prohibited under federal law (and the laws of some states) from making direct political expenditures. The PAC, then, must be a "separate, segregated fund" that raises its own money for its political spending. The parent organization, however, is free under federal law to pay the overhead costs of the PAC and to direct its decisions. PACs with parent organizations are further restricted by law in their fund-raising: PACSs of membership organizations may solicit only their members; with a few rarely used exceptions, union PACs may solicit only their members; and corporate PACs may solicit only stockholders and nonunion employees. These limits were upheld in FEC v. National Right to Work Committee (1982).

Even though the major constitutional precedents in this area have arisen largely in cases under the FECA, they apply to state legislation as well—with one exception. In Citizens Against Rent Control v. Berkeley (1981) the Court ruled that those states with initiative and referendum elections are less free to limit PAC contributions in those elections. Because no potential officeholders receive campaign funds during such elections, there is no possibility of the campaign contributions eventually corrupting public officials.

By 1988 there were 4,268 PACs registered under federal law as against 608 in 1974; their contributions to congressional candidates had jumped from $12.5 million in 1974 to $148.1 million in 1988. That growth has given rise to proposals for new restrictions, proposals that have raised new constitutional questions. President george bush in 1989 proposed that PACs with parent organizations be banned. No details were forthcoming, but certainly an outright ban would raise serious constitutional issues, more than, say, a change in the law to prohibit parent organizations from paying PAC overhead costs. Other common proposals would cut the limit on PAC contributions to candidates from $5,000 to $3,500 or even lower. One must determine, however, at what point restrictions on contributions become an invasion of First Amendment rights. Still other proposals would limit the total receipts a candidate might accept from PACs. As limits on receipts appear to stand logically between limits on contributions and limits on spending, these, too, would appear to be in a zone of constitutional uncertainty.

Clearly, the Supreme Court has not moved very far into the balancing of the legitimate regulatory interests of Congress and the First Amendment rights of PACs. It has in fact dealt only with one extended piece of legislation at one point in time; Congress has passed no major regulation of PACs since 1976, and the states began to do so only in the late 1980s. New issues will reach the courts (e.g., state limits on candidates' receipts from PACs), forcing new constitutional interpretations. Moreover, the changing status quo in campaign finance, and especially the growth of PACs, put old rules and precedents in a new legislative context.

Frank J. Sorauf
(1992)

(see also: Campaign Finance.)

Bibliography

Gottlieb, Stephen E. 1985 Fleshing Out the Right of Association: The Problem of the Contribution Limits of the Federal Election Campaign Act. Albany Law Review 49:825–854.

Sorauf, Frank J. 1986 Caught in a Political Thicket: The Supreme Court and Campaign Finance. Constitutional Commentary 3:97–121.