When the Citizens United decision came down, I argued that its impact was being overblown because the central holding of the case, that corporations could spend money to directly influence an election, would not be used because companies wouldn’t want their name on the ads. Since they could already spend that money by laundering it through a third party group, I didn’t think much would change. It looks like I was wrong.
Rick Hasen, who is probably the most prominent legal expert on election law in the country, wrote an article recently in Slate pointing out why I and many others were wrong:
The argument goes like this: The Supreme Court back in 1976 held that individuals had a constitutional right to spend unlimited sums on elections. And before Citizens United, rich individuals like George Soros gave large sums of money to so-called “527 organizations” (named after an obscure section of the tax code) with innocuous names like “Americans Coming Together.” These 527 organizations were just like super PACs, so there’s nothing new here.
This line of attack is so strong and insistent that the New York Times public editor, Arthur Brisbane, felt it necessary to weigh in on whether the paper’s stories tying Citizens United to super PACs were fair. (He concluded they were, but that the truth was complicated.) The purpose of the drumbeat appears to be to insulate the Supreme Court from further criticism of the Frankenstein’s monster they’ve created.
It is true that before Citizens United people could spend unlimited sums on independent advertising directly supporting or opposing candidates. But that money had to be spent by the individual directly. It could not be given to a political action committee, which had an individual contribution cap of $5,000 and could not take corporate or union funding. In many cases, wealthy individuals did not want to spend their own money on advertising, which would say “Paid for by Sheldon Adelson” or “Paid for by George Soros,” so fewer of these ads were made. The only way to avoid having your name plastered across every ad was to give to the 527s, which claimed they could take unlimited money from individuals (including, sometimes, corporate and labor union money) on grounds that they were not PACs under the FEC’s definition of PACs. These organizations were somewhat successful, but a legal cloud always hung over them. During the 2008 Democratic primary season, Bob Bauer, candidate Obama’s lawyer, barged in on a pro-Hillary Clinton conference call to say that people giving to 527s to support Clinton could face criminal liability.
After Citizens United, the courts (most importantly in Speechnow.org v. FEC) and the FEC provided a green light for super PACs to collect unlimited sums from individuals, labor unions, and corporations for unlimited independent spending. The theory was that, per Citizens United, if independent spending cannot corrupt, then contributions to fund independent spending cannot corrupt either. (I am quite critical of this theory about corruption, but that’s besides the point here.) So what was once of questionable legality before the court’s decision was fully blessed after Citizens United.
So it isn’t really the Citizens United decision itself, which is what I was writing about at the time, but the subsequent court rulings (like SpeechNow) and FEC rulings based upon that ruling that are the real problem. And he notes the staggering numbers on third party spending to influence elections:
Let’s focus only on presidential election years, to keep the comparisons as simple as possible. In the 1992 election season, when it was entirely possible (under that 1976 Supreme Court decision) for Sheldon Adelson or George Soros to spend unlimited sums independently on elections, total outside spending up to March 8 was about $1.5 million. In 2000, total outside spending up to March 8 was $2.6 million. In 2004 and 2008, with the explosion of 527 organizations, total spending to March 8 was $14 million and $37.5 million. What is the total for this election season through March 8? More than $88 million, 234 percent of 2008’s numbers and 628 percent of 2004’s.* If this was not caused by Citizens United, we have a mighty big coincidence on our hands.
Mark Schmitt of the American Prospect took exactly the same position I did on Citizens United when it came out, but he recognized his error during the 2010 election. I should have recognized it then as well.