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1 Brent Ferguson, Candidates & Super PACs: The New Model in 2016 1 (2015)

handle is hein.brennan/cansupcsnm0001 and id is 1 raw text is: BRENNAN CENTER FOR JUSTICE at New York University School ofLaw CANDIDATES & SUPER PACS: THE NEW MODEL IN 2016 By Brent Ferguson As voters begin to assess presidential candidates ahead of the 2016 election, they'll face a new world in which ostensibly outside groups - which often have extremely close ties to the candidates, but are theoretically separate from them because they aren't controlled by the candidate and don't give their money directly to her campaign - could dominate political spending. That's because super PACs and other groups conceived after the 2010 Citizens United decision may raise money without limits, while candidates cannot. While many have understood that super PACs would make a significant impact on American elections, few could have predicted the speed with which they have evolved and moved to the center of our political system.' The skyrocketing spending from these groups has left many concerned that elected officials work mainly for the big spenders that helped get them into office.2 In cases like Citizens United, the U.S. Supreme Court has told us not to worry: outside spending cannot corrupt a candidate, the argument goes, because the candidate cannot control that spending - it's not in his control, he may not want it, or may not approve of the way it is spent. That argument is looking increasingly divorced from reality. This analysis will discuss several ways in ANALYSIS which presidential candidates in the 2016 cycle are engaging in even greater collaboration with super PACs and other outside groups, obliterating the distinction between candidates and independent organizations, which the Court has claimed is so important. Unlimited outside spending is not a new phenomenon, but its volume and nature is in the midst of drastic change. Since 1976, the Supreme Court has said that individuals have a right to spend unlimited amounts as long as that spending is not given to or coordinated with a candidate. But until 2010, there was a $5,000 limit on contributions to federal PACs, which, along with prohibitions on most corporate and union electioneering, effectively discouraged outside spending on the scale we see today. An appeals court ruling that year struck down the $5,000 limit based on the reasoning of Citizens United, and the super PAC was born. The 2016 election will be the fourth election since the genesis of super PACs. Each has seen novel uses of the powerful campaign spending vehicle. The rise in super PAC spending has been quite significant, but the more remarkable recent phenomenon is the decreasing separation between candidates and supportive super 1. Nicholas Confessore & Eric Lichtblau, 'Canpaigns'Aren'tNecessarily Canpaigns in the Age of 'Super PACs, N.Y. TIMES, May 17, 2015, httgibramyim~ comu2 lidBiu golitic~shper-tacs-grremvakigl mig.~czvnns-±rpri~ not n L r- (With striking speed, the 2016 contenders are exploiting loopholes and regulatory gray areas to transform the way presidential campaigns are organized and paid for.). 2. In a recent New YorkTimes poll, 84% of respondents said that money has too much influence. Almost 80% said that independent spending should be limited. Americans' Views on Money in Politics, N.Y. TiMES, June 2, 2015,

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