Sunday, February 26, 2012

Yes, Citizens United did unlatch the Super PAC floodgates

Wendy Kaminer is the latest in a chorus of commentators complaining that the media in general, and The New York Times in particular, is misleading the public by asserting repeatedly that the Superme Court's Citizens United  decision has enabled the new Super Pacs:
Like Fox News, The New York Times has a First Amendment right to spread misinformation about important public issues, and it is exercising that right in its campaign against the Citizens United ruling. In news stories, as well as columns, it has repeatedly mischaracterized Citizens United, explicitly or implicitly blaming it for allowing unlimited "super PAC" contributions from mega-rich individuals. In fact, Citizens United enabled corporations and unions to use general treasury funds for independent political expenditures; it did not expand or address the longstanding, individual rights of the rich to support independent groups. 
Kaminer, like Steven Brill and Dan Abrams before her, is making a mountain out of a molehill -- or worse, promoting a misapprehension more consequential than that of which she accuses the Times.  As she herself acknowledges, while Citizens United did not directly address the rights of individuals to make unlimited contributions to organizations advocating directly for a candidate, it shaped the subsequent decision that did create the Super Pacs: v. Federal Election Commission, decided by the U.S. Circuit Court of Appeals for the District of Columbia Circuit in March 2010.

Kaminer's account of the relationship between the two cases is misleading. She implies that the Citizens United decision had merely a clarifying rather than a controlling role in Speech Now:

What paved the way for super PACs? First came Buckley v. Valeo, the 1976 case that struck down limits on independent expenditures while sharply limiting direct contributions to candidates, thus ensuring the formation of well-funded independent groups. More recently, in Speech Now v. FEC, a case decided in the aftermath of Citizens United, a federal appeals court ruled that an independent group devoted to promoting free-speech rights (Speech Now) could not be considered a political action committee and subject to limits on donations. ("Super PAC" is a misnomer for groups that derive power from the fact that they are not legally classified as PACs.) The Court in Speech Now did rely on Citizens United, citing it for the proposition that the government has no "anti-corruption interest" sufficient to justify limiting independent expenditures. But it could also have reached back decades to Buckley and a tradition of protected, independent political advocacy and deservedly unsuccessful efforts to restrict it.
Yes, the Speech Now court "could have reached back to Buckley." But Kaminer obscures the fact that the Supreme Court in Citizens United,  in its own mode of  "reaching back to Buckley," reversed decades of jurisprudence that broadened the scope of the government's anti-corruption interest. The Speech Now decision reviews the history as follows:
For several decades after Buckley, the Court’s analysis of the government’s anti-corruption interest revolved largely around the “hallmark of corruption,” “financial quid pro quo: dollars for political favors,” NCPAC, 470 U.S. at 497. However, in a series of cases culminating in McConnell, the Court expanded the definition to include “the appearance of undue influence” created by large donations given for the purpose of “buying access,” 540 U.S. at 144, 148. See also FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 441 (2001); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 389 (2000). The McConnell Court concluded that limiting the government’s anticorruption interest to preventing quid pro quo was a “crabbed view of corruption, and particularly of the appearance of corruption” that “ignores precedent, common sense, and the realities of political fundraising.” 540 U.S. at 152. The Citizens United Court retracted this view of the  government’s interest,  saying that “[t]he fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.” 130 S. Ct. at 910. The Court returned to its older definition of corruption that focused on quid pro quo, saying that “[i]ngratiation and access . . . are not corruption.” 
 The Speech Now court could not have been clearer that Citizens United completely determined its ruling:
In its briefs in this case, the FEC relied heavily on McConnell, arguing that independent expenditures by groups like SpeechNow benefit candidates and that those candidates are accordingly grateful to the groups and to their donors. The FEC’s argument was that large contributions to independent expenditure groups “lead to preferential access for donors and undue influence over officeholders.” Appellee’s Br. in Keating v. FEC, at 16. Whatever the merits of those arguments before Citizens United, they plainly have no merit after Citizens United. Therefore, without any evidence that independent expenditures “lead to, or create the appearance of, quid pro quo corruption,” and only “scant evidence” that they even ingratiate, id., the Court concluded that independent expenditures do not corrupt or create the appearance of corruption.

In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption (p. 14).
The fact that Citizens United controlled the decision in Speech Now, which enabled the Super PACs as we now know them, is spelled out in a victory lap taken by Edward Crane, co-founder of Speech Now, founder and president of the Cato Institute:
We are two of the winning plaintiffs in v. Federal Election Commission, which was decided by the U.S. Circuit Court of Appeals for the District of Columbia Circuit in March 2010. Contrary to the belief that Citizens United created Super PACs, made such groups possible and legal.

As Jan. 31's disclosure of the supporters of Super PACs showed, the majority of funding for almost all of them comes from individuals. In Citizens United v. Federal Election Commission (2010), the Supreme Court did not alter the $5,000 limit on individuals combining their efforts through traditional political action committees to promote a federal campaign. But recognized the right of individuals to give unlimited funds to any such committee organized solely to make independent expenditures(although the contributors and their contributions must be disclosed). What Citizens United did was to affirm the right of corporations and unions to make such independent expenditures.
Would-be debunkers of the notion that Citizens United radically altered the campaign finance landscape point out that the Swift Boat attacks on John Kerry and large donations to so-called 527 groups predated Citizens United and Speech Now. But 527s, seeking to avoid contribution limits, claimed that they were not PACs "because they were not making expenditures to advocate the election or defeat of any federal candidates but instead were engaging in independent “issue advocacy.”  Super PACs do not thus restrain themselves.

It is not inaccurate to say that Citizens United opened the floodgates of Super PAC money, or even to assert, as Andrew Rosenthal did in a blog post flagged as evidence of repeated malpractice by Kaminer, that "Thanks to Citizens United, unlimited contributions to third-party groups are legal." The link goes to a Huffpost piece that spells out the role of Speech Now.  It would be better practice to develop a shorthand to spell that role out parenthetically. But it's more misleading to assert without clarification, as Dan Abrams does,  that "The Citizens United ruling had NOTHING to do with the ability of individuals to spend their money to support candidates."

UPDATE: regarding the impact of Citizens United, Kevin Drum divides the baby, suggesting that the increase in freedom compared to the 527s of yore is incremental, and also widens the focus, noting that the nonprofits organized to fund Super PACs are not required to disclose their donors. Super PACs do have to follow the reporting requirements imposed on PACs -- Speech Now decided that -- but the donating 501(c)(4) groups that fatten them can be black boxes.

1 comment:

  1. Thank you for this article. I posted to my fb.- jade amber