The 2016 PAC Problem: To go Super or Hybrid?
In the summer of 2011, the little known D.C. District Court case, Carey v. FEC, ushered in the era of the Hybrid Political Action Committee. The upcoming 2016 election marks the first presidential election in which these Hybrid PACs will be able to participate on a full scale.
Hybrid PACs, much as the name suggests, are a crossover between the traditional PAC and the now infamous Super PACs. The landmark Supreme Court case of Citizens United paved the way for the Super PAC entity, which, unlike the traditional PAC, has no spending or contribution limits for its political activity. The caveat, of course, is that the Super PAC cannot coordinate with any candidate for federal office and may only make “independent expenditures.” Traditional PACs, by contrast, can donate directly to candidates, but are subject to federal election contribution and expenditure limits.
Prior to Carey, fiscal and administrative realities often meant that people seeking to establish a political action committee had to choose between registering a traditional PAC or a Super PAC. Now the two organizations can be combined under one umbrella organization, provided the “independent expenditure” account is maintained separate from the direct expenditure account.
The sheer convenience and flexibility of the Hybrid PAC model, at least conceptually, seems an irresistible vehicle for those who seek to influence elections. Indeed, this concept is what prompted David Backer, the attorney who successfully argued Carey, to famously proclaim, “any PAC that doesn’t become a Hybrid PAC is run by idiots… my thought is we’ll never say 'super PAC' again in 10, maybe five years.”
Backer’s proclamation may have been a bit premature, however. Now four years beyond Carey, the Federal Election Commission currently lists only 106 registered Hybrid PACs compared to 989 registered Super PACs. The surprisingly large gap can at least partially be explained by a simple lack of understanding. Most people have never heard of a Hybrid PAC. Why might this be?
Perhaps it’s a matter of judicial scale. Unlike the Supreme Court case, Citizens United, Carey was decided by the lower D.C. District Court and failed to garner the national attention of its predecessor. Perhaps more importantly, the Super PAC model gained notoriety because it was thrust into the living rooms of the general public by the comedic duo Stephen Colbert and Jon Stewart. Watch the YouTube video Stephen Colbert's Super PAC Lessons | Long Story Short | NBC News.
For whatever reason, the spotlight never shined on Hybrid PACs in this way and Hybrid PACs remain relatively unknown and significantly underutilized. Nevertheless, savvy PAC leadership should think twice before ignoring the their notable advantages, and opting for the more common Super PAC. There are clear benefits -- both financially and administratively -- to “going Hybrid.” When it comes to the ability to collect donations, it seems self-evident that the more options you have, the better positioned you are to effect change.
Interested in forming a PAC or changing your PAC structure? Contact a Taylor English Public Interest Advocacy attorney. This post should not be construed as legal advice, nor as the creation of an attorney-client relationship.
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