From Super PACs to Dark Money

Every election now comes with a shadow campaign: super PACs that can raise and spend without limit, nonprofits that spend without naming their donors, and a candidate who is supposed to have nothing to do with any of it. Is all of this speech, as the Supreme Court says, or is it something being bought? And how did a system that Congress designed to limit both giving and spending end up limiting only one?

In this TalksOnLaw interview, guest host Suraj Patel sits down with Richard Briffault, the Joseph P. Chamberlain Professor of Legislation at Columbia Law School and one of the country's foremost scholars of the law of money in politics, for a guided tour of the architecture — and the plumbing — of American campaign finance, and then a hard look at whether it can be fixed.

Two Reasons to Regulate

Briffault begins with the purposes: the fairness of the electoral contest itself, and the effect of money on the government that follows. He is careful about the second. The concern is rarely a literal quid pro quo; it is that an official heavily funded by one donor will be "unduly attentive" on matters that may not even be on the horizon during the campaign. Money is not speech, he says, but in a large and expensive society you must spend money to be heard — and the ads, robocalls, and get-out-the-vote drives it buys are speech. That is why the Court has allowed limits on contributions but not on spending, and why the entire system flows from that asymmetry.

PACs, Super PACs, and the Meaning of "Independent"

Briffault traces the political action committee to the 1940s, when the CIO responded to a ban on union treasury spending by asking members to contribute to a separate fund, and explains what made a PAC "super": the 2010 SpeechNow decision in the D.C. Circuit, which reasoned that if independent spending cannot be limited, contributions to a committee that does only independent spending cannot be limited either. The catch is the word independent, defined as spending not "prearranged or coordinated" with the candidate — a standard, Briffault and Patel agree, that is nearly impossible to police, since contact alone does not prove coordination and parallel messaging is permitted.

Dark Money and the Case for Disclosure

Super PACs must disclose their donors. The organizations that do not are the 501(c)(4) "social welfare" groups, which avoid express advocacy, report their spending but not their sources, and have become the vehicle for what is now called dark money. Briffault explains why a donor might prefer anonymity — an energy group whose ads attack a candidate on crime, a fear of solicitations, or the Target boycott that followed a Minnesota contribution — and why the Court, despite protecting anonymous speech for groups like the NAACP, has upheld campaign disclosure laws, with Justice Scalia among disclosure's strongest defenders. Corporate treasury spending, he notes, has been far smaller since Citizens United than either side predicted, partly because shareholders and customers push back.

Buckley's Half a Loaf

Briffault then explains how the system came to be. After Watergate, Congress enacted comprehensive limits on contributions and spending, full disclosure, and public funding for presidential races. In Buckley v. Valeo (1976) the Court upheld everything but the spending limits, recognizing only one justification for regulation — corruption or its appearance — and holding it insufficient to cap independent expenditures or a candidate's use of personal wealth, since "you can't corrupt yourself." What followed, Briffault argues, is four decades of evasion and response: bundlers, soft money, McCain-Feingold's brief restoration, and Citizens United's removal of the corporate ban. Spending limits, common abroad, founder in the United States on the difficulty of defining electioneering. Asked what ten donors get for $50 million, Briffault's answer is not a candidate but an agenda.

Too Much Money, or Too Lopsided?

Patel turns to the question of equality — whether the right of a few to be heard is drowning out everyone else — and Briffault agrees the problem is real while noting the Court has been "consistently hostile" to equality as a justification since Buckley. He then disagrees with the popular consensus: the presidential election costs less than Americans spend advertising yogurt or cars, and the problem is not the amount of money but where it comes from and how it is distributed. The "wealth primary" decides who can run a year before any vote is cast. His example of money's indirection is Caperton: a coal executive with a case pending funded ads accusing a West Virginia chief justice of being soft on child molesters, through a group called For the Sake of the Kids.

Credibility, Small Donors, and the Internet

Does fundraising validate a candidate? Both agree it does, and Briffault sharpens the question: is $50,000 from one donor the same signal as $50,000 from five thousand? Most public-funding designs answer no, requiring a broad base of small gifts before public money flows. Patel presses the technological point — if speech is free online, why does money still matter? — and Briffault explains why the internet has lowered the cost of raising money but not of reaching voters who are not looking: layered on top of television rather than replacing it, it remains expensive to make a message find someone.

Foreign Money and Anonymous Coffee

Foreign contributions are prohibited, and Briffault regards the risk as small at the reported level, though untraceable below $200. The real open question after Citizens United, he says, is the foreign-owned or foreign-influenced corporation, a line the law never needed to draw when all corporate spending was banned. Patel's coffee analogy — can you judge "this coffee is terrible" without knowing whether the speaker works for a competitor? — leads to Briffault's defense of disclosure as a voter's shortcut, especially in ballot measures where "no means yes" and industry groups float competing propositions.

Matching Funds and Who You Fear More

The comparative tour covers free broadcast time, spending limits, and party-centered public funding abroad, and the American alternatives: the presidential system's flat grants, which died of under-indexing and unilateral disarmament, and New York City's matching program, with the cautionary tale of John Liu's disqualification. Briffault frames the whole debate as a question of temperament: who makes you more nervous, the government or the wealthy? His own prescription is public funding that levels up rather than down, and dark-money disclosure that the Court would permit if Congress would act — a reform, he concludes, that is doable; "we just haven't done it."

What to Know Now

The trajectory Briffault describes has continued in the direction of deregulation. Justice Scalia's seat went to Justice Gorsuch, and the Court has since struck down the federal limit on candidates' repayment of personal campaign loans in FEC v. Cruz (2022) and, in NRSC v. FEC (June 2026), the limits on political parties' coordinated spending with their candidates — overruling Colorado Republican II while leaving contribution limits and disclosure intact. On disclosure, the area where Briffault saw constitutional room, the Court moved the other way in Americans for Prosperity Foundation v. Bonta (2021), applying exacting scrutiny to strike a state donor-disclosure requirement and making new dark-money laws harder to defend. Congress has not passed the DISCLOSE Act, though a federal court in CREW v. FEC (2018) widened the donor disclosure required of nonprofits that make independent expenditures, and several states have enacted their own dark-money laws, among them Arizona's Voters' Right to Know Act (2022). The individual contribution limit he cites ($2,600 per election) is now $3,500. The reforms he favored have gained ground where states and cities control them: Seattle's democracy vouchers took effect in 2017; New York State launched a small-donor matching program for legislative and statewide races in 2024; and more than a dozen states and cities now offer some form of public financing. The scale has grown: the 2024 federal elections cost roughly $16 billion, and dark-money spending set records, while corporate treasury spending remained modest, as he observed. The Federal Election Commission itself has lacked a quorum since April 2025. Briffault remains at Columbia and served as Reporter for the American Law Institute's Principles of Government Ethics, completed in 2023.