“Super PACs” have become a fixture on the American political landscape over the last 14 years. Some Super PACs, such as “Right to Rise USA” and “Never Back Down Inc.,” have featured so prominently in elections that they were almost synonymous with the campaigns of the candidates they supported (Jeb Bush and Ron DeSantis, respectively).
While most voters may have heard of Super PACs, seen their advertising, and even met their canvassers, there is still little understanding of what a Super PAC is among those who aren’t seasoned political operatives and campaign finance attorneys. This article will attempt to demystify this relatively new feature of American politics.
Legal Background
Although Super PACs first emerged in 2010, when the Federal Election Commission (FEC) issued a pair of advisory opinions formally recognizing them, their legal underpinnings trace back to 1976.
In 2010, the U.S. Supreme Court issued its landmark decision in Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010). The Citizens United case did not specifically address Super PACs; rather, the Court held that corporations may not be prohibited from making expenditures on candidate advocacy so long as they do so independently of candidates and their campaigns (so-called independent expenditures).
Citizens United relied on the reasoning of another landmark Supreme Court case, Buckley v. Valeo, 424 U.S. 1 (1976), which upheld and invalidated major provisions of the modern-day federal campaign finance statute. Relevant to Citizens United and Super PACs, Buckley held that, under the First Amendment, the government may not impose monetary caps on independent expenditures. While campaign finance laws may be enacted to combat corruption, Buckley held (and Citizens United reaffirmed) that speech that is not coordinated with candidates and their campaigns is not corrupting.
Shortly after Citizens United, the U.S. Court of Appeals for the D.C. Circuit applied the Supreme Court’s logic to the case SpeechNow.org v. Federal Election Comm’n, 599 F.3d 686 (D.C. Cir. 2010). At issue in SpeechNow was the $5,000 annual limit on how much any individual donor may give to a political action committee (PAC). Traditionally, PACs collected money from donors to then give to candidates, subject to the PAC’s own per-election limit on how much it may give to any candidate. SpeechNow held that the $5,000 limit on contributions to PACs was unconstitutional for PACs that make only independent expenditures.
After applying the Citizens United and SpeechNow rulings, the FEC formally recognized what it called “independent expenditure–only political committees.” Reporter Eliza Newlin Carney is credited with coining the more colloquial term “Super PAC” for these entities.
How Is a Super PAC Different from a PAC?
In short, a Super PAC is a PAC that is permitted to collect contributions beyond the PAC contribution limits and outside of the prohibition on corporations and labor unions making political contributions (which otherwise still applies even after Citizens United). As a condition for being freed from these shackles that apply to conventional PACs, Super PACs are not permitted to make any contributions to candidates or their campaigns.
What Are the Restrictions on a Super PAC’s Spending?
The ban on Super PACs contributing to candidates includes not only making monetary contributions directly to candidates and campaigns but also making so-called “in-kind contributions” (i.e., providing goods or services).
For Super PACs, the ban on in-kind contributions primarily applies to coordination, and specifically the coordination of advertising. At the federal level, the FEC has a well-developed rule on “coordinated communications” that determines whether a Super PAC’s paid advertising qualifies as permissible independent expenditures or prohibited in-kind contributions. The rule is comprised of a “payment prong,” a “content prong,” and a “conduct prong.” A coordination violation occurs when all three prongs are tripped.
The payment prong, which asks whether a third party has paid for the ad, is always triggered when a Super PAC pays for the ad. Within the content and conduct prongs, additional “standards” must be met for each of these prongs to be triggered. For example, ads that “expressly advocate” for or against a candidate, that qualify as “electioneering communications,” or that refer to candidates within certain pre-election time windows will satisfy a content standard and, therefore, trigger the content prong. Conversely, if an ad does not satisfy any of the content standards, then it does not violate the coordinated communications rule, even if a Super PAC otherwise has engaged in coordinated conduct with a candidate’s campaign.
The final prong asks whether certain conduct has occurred. For example, a candidate, campaign, or its agents making a “request or suggestion” to a Super PAC, having “material involvement” or “substantial discussions” concerning a Super PAC’s ads, or sharing a “common vendor” with a Super PAC will satisfy a conduct standard and therefore trigger the conduct prong.
Until 2024, conventional wisdom had been that, in addition to being prohibited from coordinating communications with candidates and their campaigns, PACs are also generally prohibited from coordinating most other activities. However, the FEC issued an advisory opinion in 2024 permitting candidates and their campaigns to collaborate with others—including Super PACs—on door-to-door canvassing. The FEC opinion was based on some very technical language in the agency’s rules and precedents that essentially leave unregulated certain “communicative” activities such as canvassing. At the same time, “non-communicative” activities, such as transporting voters to the polls, may still be subject to the FEC’s separate “coordinated expenditure” rule. Super PACs are still prohibited from making coordinated expenditures.
Outside the coordination rules, there are other general prohibitions that could apply to a Super PAC’s spending. For example, foreign nationals are prohibited from spending money in connection with U.S. elections. This includes directing the political spending of others. Therefore, Super PACs must ensure that no foreign nationals are involved in any of the PAC’s decision-making.
Another important prohibition is that any entity “established, financed, maintained, or controlled” by a federal candidate, officeholder, or any agent thereof may not be involved in soliciting or spending funds in connection with an election unless the funds are subject to a traditional PAC’s so-called hard-money limits and prohibitions. In effect, this means that, aside from the coordination restrictions, federal candidates and officeholders are also generally prohibited from involvement in a Super PAC’s spending and other activities. For example, a U.S. senator may not form or operate a Super PAC to support a colleague running for president.
Relatedly, this prohibition bans federal candidates and officeholders from raising money for Super PACs in amounts and from sources that a Super PAC otherwise would be permitted to accept (e.g., a $1 million contribution or a corporate contribution). Technically, federal candidates and officeholders may make specific requests from individual donors of no more than $5,000 on behalf of a Super PAC. An FEC rule also permits federal candidates and officeholders to attend a Super PAC’s fundraising event as a “special guest” or “featured speaker,” so long as they limit any solicitations to “hard money” amounts and sources or do not make any solicitations at all.