Are we nearing the beginning of the end for super PACs? These political money machines, designed to work around campaign contribution limits and inject unlimited political money into our political campaigns, are more powerful now than ever. But we might be approaching a turning point. There are significant cracks in the legal foundation that created super PACs, and several converging developments in election law, constitutional law and even criminal law suggest the end may be in sight.

First, some background. Unlike traditional political action committees, which are subject to contribution limits, super PACs can tap unlimited corporate and individual contributions and then spend unlimited amounts of money on behalf of candidates. The only restriction is that super PACs cannot directly "coordinate" their "independent" political spending with the campaigns they support, and even this is shaky. Over the past three elections, super PACs have become increasingly brazen in pushing the limits of the rules against coordination.

In some elections, super PACs now dwarf the actual campaigns in fundraising and spending. For some candidates, super PAC money vastly exceeds actual campaign contributions, and nearly all super PAC money comes from ultra-wealthy donors. In fact, half of the total money in the presidential race comes from just 158 families (mainly from Wall Street and the oil and gas industries) making multi-million dollar contributions to super PACs that would be illegal if made to candidates directly.

The odd thing is that this end-run around campaign finance laws was created by a lower court, not Supreme Court, ruling. The high court's decision in Citizens United v. Federal Election Commission opened the door to unlimited corporate and union political spending, but it didn't create super PACs. Instead, we can thank a lesser-known lower court decision called SpeechNow.org v. Federal Election Commission.



To understand the latter case, rewind to early 2010. Before Citizens United, longstanding federal law prohibited corporations (and labor unions) from spending money in their general treasury accounts, as opposed to separate accounts funded by donations from employees or members, to influence candidate elections. In the Supreme Court's January 2010 Citizens United decision, it struck down those limits on the ground that the law "deprive[d] the disadvantaged person or class [i.e., corporations] of the right to use speech to strive to establish worth, standing, and respect for the speaker's voice." That overturned decades of federal law, including the court's own precedent, but it was only the beginning.

Six days after the bombshell of Citizens United, a federal court of appeals in Washington, D.C. heard argument in the unrelated SpeechNow case. SpeechNow didn't even involve corporations. Rather, the case challenged contribution limits to political action committees that promised to make only independent expenditures.

But the judges were troubled by a sentence in the Citizens United opinion, in which the court proclaimed that independent expenditures "do not give rise to corruption or the appearance of corruption." Two months later, the court of appeals decided the case based on that premise. Under the court's theory, contributions to an independent expenditure group – no matter how vast – can't lead to corruption or even the appearance of corruption.

It's easy now to see how absurd this is. It's true that a contribution to a super PAC isn't quite as useful to a candidate as an identical contribution to the candidate's own campaign. If you have $20 or $50 or even $2,700 (the federal limit) to contribute to a federal candidate, he or she would prefer that you give it directly to the campaign, rather than to a super PAC.



But super PACs don't exist for the purpose of collecting $2,700 contributions, let alone your measly $50. Super PACs are for raising the big money: millions or even hundreds of millions of dollars. And virtually no one actually believes that a candidate would prefer $2,700 in direct money over $1 million to a supportive super PAC. As Chief Justice John Roberts later noted, outside money may be worth less to candidates than direct contributions, "[b]ut probably not by 95 percent."

That's why 73 percent of Americans (75 percent of Republicans and 78 percent of Democrats) agree that "there would be less corruption if there were limits on how much could be given to Super PACs." Skyrocketing super PAC donations make Americans less likely to trust government, and less likely to vote.

And now we're beginning to see some pushback. The low-hanging fruit is "coordination." The Supreme Court has long recognized that political spending that's "coordinated" with the candidate's campaign isn't really "independent," and defining "coordination" more sharply can limit the most egregious super PAC abuses. For example, California recently passed tough new anti-coordination rules, and the Department of Justice actually prosecuted one former congressional campaign manager for coordinating with a super PAC.

Tackling coordination is a good start. But campaign activity coordination isn't the fundamental problem – it's just what the court allows the public to regulate – and super PACs have gotten so sophisticated that they don't even really need to "coordinate" their activities with campaigns anymore.

But there may be new cracks in the SpeechNow foundation. In late September, a federal judge in New Jersey issued an important decision rejecting what might be called a "SpeechNow defense" to federal bribery charges against New Jersey Sen. Bob Menendez. According to the criminal indictment, a wealthy doctor gave Menendez nearly a million dollars' worth of personal gifts and political contributions in exchange for Menendez using the "prestige, authority, and influence of his status as a United States Senator" in service of the doctor's personal and business interests, including influencing the outcome of a multimillion dollar federal investigation into Medicare overbilling. Notably, the alleged bribes included $600,000 in mid-2012 contributions to Majority PAC, an "independent" super PAC that supported Menendez's 2012 race.



Menendez's lawyers argued that "no quid pro quo corruption can arise when a private citizen contributes to a bona fide super PAC, because a bona fide super PAC does not coordinate its expenditures with a candidate." That's the SpeechNow theory. But the judge rejected this argument, noting that federal law criminalizes corruptly seeking "anything of value personally or for any other person or entity, in return for being influenced in the performance of any official act." And if quid pro quo corruption is possible through super PAC money, then SpeechNow collapses.

The legal community is beginning to recognize that the SpeechNow ruling may not stand the test of time. A recent law review article by Professor Albert Alschuler of the University of Chicago Law School lays out, for the first time, a detailed legal critique of the SpeechNow decision and a roadmap for regulating contributions to super PACs consistent with Citizens United. This November, a star-studded panel of constitutional law experts, including the Harvard Law School professor who taught constitutional law to Chief Justice Roberts, will convene at Harvard to address the question "Ending Super PACs: Is SpeechNow vulnerable?".