By Ezra Eatley, Staff Writer
If you’ve been in any political spaces on the campaign staff side, you’ve likely heard of Citizens United v. FEC.[1] For the unacquainted, the landmark 2010 SCOTUS case changed the landscape of campaign finance in holding that a federal law banning corporations and unions from using their general funds to make independent expenditures in favor of or opposition to political candidates was unconstitutional and violated the First Amendment’s protection of free speech.[2]Just a few months later, a D.C. District Court in SpeechNow.org v FEC[3] held that the FEC rules limiting the contributions individuals could make to a political action committee, such as SpeechNow, also violated the First Amendment, opening the floor to unlimited contributions to PACs.
A few important distinctions: While they can contribute directly to candidates, PACs can only give an individual candidate a maximum of $5,000 per election cycle.[4] In contrast, independent expenditures – also referred to as IEs) are made to fund communications for or against a candidate, and are not subject to an expenditure cap.[5] These communications are not made in coordination with candidates, but if any contact is made with a campaign, IEs become contributions, subject to caps and financial reporting.[6] What these two cases mean is that corporations are no longer limited by a ban on IE, or by a cap on contributions they can make to PACs, leading to super PACs and what has been referred to as “dark money”—money used for IEs from an organization that is not legally required to disclose its donors.[7]
Why does this matter to the average citizen, and more specifically why does this matter to lawyers and legal scholars? From 2010 to 2026, we have seen an almost 100% increase in spending on congressional races, from $5.2 to $9.5 billion. Presidential campaign spending jumped from an average of $3 billion to over $7 billion in the 2020 election cycle.[8] In that same period, PAC donations across national campaigns went from just $144 million in 2008 to over $4 billion[9]. In an age of massive media consumption, communication expenditures by these groups have a massive impact on .[10]During an election cycle, how many times in a day do you see some form of messaging about a candidate? From tweets to suggestive phone polls, to TikTok videos from political pundits turned “influencers,” every drop of the public’s attention matters in winning an election. As airtime has become a hot commodity for congressional candidates, ad spending has almost tripled in the last fourteen years. 30% of those ads were placed by.[11]
As the country enters into another round of midterm congressional elections, the impact of independent expenditures may be felt even stronger in a city like Pittsburgh with a contentious congressional district. PA-12 has already been the focus of millions of dollars flowing in from PACs and individual wealthy donors looking to have their interests reflected in the halls of Congress – AIPAC spent over $4 million opposing Congresswoman Summer Lee in 2022, and the Moderate PAC, funded primarily by Jeffrey Yaas, spent over $600,000 against her 2024 reelection.[12] Campaign finance reform has often been debated since the FEC’s creation in 1974, leading to several particularly interesting legal questions: What legislation can be passed to limit IEs without violating the First Amendment? Was Justice Kennedy’s decision—that independent expenditures could not corrupt—too trusting of corporations that he expected to be transparent in the sources of their funds?
As campaign media spending continues to grow, it is important to consider whose media you are viewing. Understanding not only what this ad wants you to believe, but why it wants you to believe it, is more important to our democracy than ever before. As Josh Lyman rants in The West Wing episode “Let Bartlet be Bartlet”: “It’s coming from special interests. It’s coming from special interests whose interests aren’t the same as those who don’t have a half a million bucks lying around…”
[1] https://supreme.justia.com/cases/federal/us/558/310/.
[2] Id.
[3] https://www.fec.gov/legal-resources/court-cases/speechnoworg-v-fec/.
[4] https://www.opensecrets.org/political-action-committees-pacs/what-is-a-pac.
[5] https://www.fec.gov/help-candidates-and-committees/candidate-taking-receipts/understanding-independent-expenditures/.
[6] Id.
[7] https://www.brennancenter.org/our-work/research-reports/secret-spending-states.
[8] Id.
[9] https://www.americanprogress.org/article/undoing-citizens-united-and-reining-in-super-pacs/#:~:text=The%20consequences%20were%20swift.,figure%20rose%20to%2097%20percent.
[10] https://www.rutgers.edu/news/how-media-namely-news-ads-and-social-posts-can-shape-election.
[11] https://mediaproject.wesleyan.edu/releases-103124/.
[12] https://mondoweiss.net/2024/04/aipac-stayed-out-of-pennsylvania-to-avoid-losing-to-summer-lee-again/.