No need here to rehash the debate over whether the U.S. Supreme Court got it right in Citizens United. But it frequently seems necessary to remind ardent opponents of the decision exactly to what extent the decision advanced speech rights, what campaign finance laws it upheld and what current restrictions—and freedoms—it never considered and therefore left undisturbed.
The Citizens United court overruled the 1990 decision in Austin v. Michigan Chamber of Commerce in which it had previously upheld a corporate (and union) ban on using general treasury funds for independent campaign expenditures. Expenditures are wholly controlled by the entity engaging in the speech activity and are supposed to be independent of candidate influence or coordination. In doing so, the Court also struck down the particular law at issue in the case that was previously upheld in McConnell v. FEC. That law banned “electioneering communications” or what were commonly criticized as “sham issue ads” during certain periods before an election. McConnell had relied on the anti-distortion state interest rationale accepted in Austin. More on sham issue ads later.
So what really happened? For one, the Court did not disrupt federal laws capping direct contribution limits to candidate campaigns; the quintessential perceived quid pro quo scenario. It also did not establish any individual right to make unlimited campaign expenditures. Why? Because that right was already established by the Court back in 1976 in Buckley v. Valeo. And since Buckley, corporations have established, contributed to and spoke through independent political action committees. The difference was that the funds supporting such PACs could not be taken from general corporate treasury but rather were limited to voluntary contributions from sources such as corporate employees and stockholders. The Court also did not for the first time recognize a corporate constitutional right to speak on political matters. That was already well-established with the Court’s 1978 decision in First National Bank of Boston v. Bellotti.
Moreover, the Citizens United court voted 8-1 (sigh, J. Thomas) to uphold disclaimer and disclosure provisions found in the law that require independent entities to clearly communicate who was responsible for the speech, provide contact information for the source and explain that it was not endorsed by any candidate. It further upheld the constitutionality of requiring public expenditure disclosure statements to be routinely filed with the Federal Election Commission.
Coupled with the U.S. Court of Appeals for the District of Columbia’s post-Citizens United decision in Speechnow.org v. FEC in which it held that in light of the high court’s ruling laws setting contribution limits to PACs were also unconstitutional, the “Super PAC” was born.
And with it came a greatly renewed public interest in campaign financing and who lurks behind the latest television spot in the ongoing Republican primaries. Do you ever remember a time when the average citizen has been made so aware of the sources of and motivations behind political messaging?
Super PACs have indeed been put under intense scrutiny by the media and many public interest groups. They have also been brutally criticized and mocked by the likes of Jon Stewart and Stephen Colbert. There is a wealth of information about these now all too familiar groups: Restore Our Future (a Mitt Romney supporter), Winning Our Future (a Newt Gingrich supporter), the Red White and Blue Fund (a Rick Santorum supporter) and Priorities USA (a Barack Obama supporter). Even the AFL-CIO has jumped into the fray with its pro-labor Super PAC, Workers’ Voices. As of the end of January, Workers’ Voices reportedly raised about $3.7 million. In short, we know (and care) a lot about the history and politics of who comprises these groups and their funding sources—more so than we ever did in the past.
The media and public are focusing on campaign transparency issues like never before. While often harshly criticizing the holding in Citizens United, independent groups like the Center for Responsive Politics, the Sunlight Foundation and Democracy 21 closely track Super PAC support and spending and make that information available to the media and public. Political speech that routinely occurred in the past whose source was frequently obscured by secrecy now stands at the center of the national debate.
Distorted political ads sponsored by nondescript groups obviously existed before Citizens United. Did the average American ever know that the true source of the infamous and morally depraved Willie Horton ad that helped torpedo Michael Dukakis’ 1988 presidential campaign was sponsored by a PAC, Americans for Bush? Did that group ever receive appropriate scrutiny at the time? Beyond that, did typical voters really care all that much? This cycle, you would know from a quick Google search that the man behind that ad, Larry McCarthy, is now creating ads for Restore Our Future. It has been extensively reported.
Post-Buckley, non-corporate speakers (George Soros anyone?) always had unrestricted freedom to make expenditures. Buckley’s narrow definition of what constituted an “expenditure,” a communication specifically calling for the election or defeat of a candidate, emboldened corporations to spend wildly on “issue ads” that did everything to discredit or promote a candidate just short of expressing a view on how to vote. While laws seeking to stem the proleferation of “sham issue ads” withstood a facial constitutional challenge in McConnell, issue ad regulation was partially diluted by the Supreme Court three years later in FEC v. Wisconsin Right to Life, Inc. There the Court held that as-applied challenges to the law could be sustained unless an ad could not be reasonably interpreted as anything but express advocacy urging one to support or reject a particular candidate.
During the 2000s, 527 organizations—defined by the section of the federal tax code under which they are formed as nonprofit organizations—also began to flourish. The most famous of these groups, which usually do not expressly advocate the election of a candidate and are generally not subject to FEC regulation, was the 2004 Swift Boat Veterans for Truth. Many claim it unfairly doomed John Kerry’s presidential bid.
During the 2000 election, the billionaire Wyly brothers’ mysterious 527 group, “Republicans for Clean Air,” ran millions of dollars in ads in key primary states touting then candidate George W. Bush’s claimed exemplary environmental record. These questionable ads were cited by some as instrumental in helping Bush defeat his main primary challenger, John McCain. Do you remember the Wyly brothers’ 527 group? Me neither. 527 groups were in most significant ways left wholly unregulated and, with the exception of the Swift Boaters in 2004, received relatively sparse media coverage.
It seems dishonest to therefore hold Citizens United as the sole harbinger for the monied takeover of political campaign spending—especially since even before the decision came down about half of the states did not have such restrictions on corporate spending in place. What It has certainly done is to energize the debate over money and politics. In this regard it has done the voting public a service, leaving them better educated about the finance process and more critical of political advertising.
Of equal importance, it has also exposed the critical need for much greater transparency in the campaign finance process and greater walls of separation between candidates and independent backers.
Many arguing for greater disclosure have highlighted what is commonly referred to as the “Russian doll” dilemma. While Super PACs are required to file financial disclosure statements with the FEC detailing funding sources, they are allowed to accept bulk contributions from incorporated 501(c)(4) entities that themselves are not required to disclose funding sources. This of course can allow Super PACs to shield the true identity of backers. Others have also criticized disclosure lag times where Super PACs can withhold reporting on source funding until after much messaging and voting has occurred.
Coordination with candidates is also a concern. It certainly raises an eyebrow when Foster Friess, the main backer of the pro-Santorum Red, White and Blue Fund is seen standing on stage directly behind his candidate as he gives a primary victory speech in Missouri. A pro-Rick Perry Super PAC, Make Us Great Again, was led by Texas lobbyist and longtime Perry friend and former chief of staff Mike Toomey. In addition to Larry McCarthy, key figures in the pro-Romney Restore Our Future Super PAC include the candidates former counsel Charles Spies and his 2008 campaign political director Carl Forti.
President Obama’s supporting Super PAC is no different. It is managed by well-known democratic political operatives like Paul Begala and Obama’s 2008 campaign press secretary and former White House deputy press secretary Bill Burton.
It is indeed a hard pill to swallow to believe that given their incestuous lineage these groups operate wholly independent of the candidates. We should support measures to create and enforce greater separation between candidates and independent supporters. Current initiatives such as reintroducing a version of the DISCLOSE Act to provide for greater Super PAC transparency should be supported.
Greater transparency at all levels should remain the preferred method to combat undue influence, ferret out political motive and publicly shame those who seek to pervert the election process. Government restrictions on speech imply that voters are simply too weak to assess the source and credibility of a message. That is simply paternal. We are stronger than that.