Last week, when Mitt Romney claimed not to have seen an attack ad his campaign had produced, he was no doubt trying to blame his super PAC, Restore Our Future, for coming up with it. Whether or not the former Massachusetts governor was being truthful-one can imagine that, in a fast-moving campaign, candidates only passively approve the messages their surrogates put out-the incident underscored the way super PACs, which are barred from coordinating directly with the candidates they are supporting, have come to dominate the political landscape.
In the first presidential race since the Supreme Court's 2010 decision in Citizens United, which opened the doors for corporations to make unlimited contributions in support of a candidate, campaign-finance law is at the center of the election cycle like never before. One question that's come up again and again is whether Citizens United should be blamed for the rise of super PACs and for the apparent spike in large private donations, like Sheldon Adelson's much-reported $10 million contribution to Newt Gingrich's super PAC, Winning Our Future. While Citizens United is a deeply problematic decision for a number of reasons, it's by no means clear that "Sheldon Adelson is Citizens United come to life" is an accurate statement. Indeed, much of what Americans have found objectionable about this year's super-PAC-dominated campaigns could have come to pass even without the Citizens decision. The problems in our campaign-finance system run deeper.
Before the decision was handed down, it was not as though wealthy individuals were unable to spend exorbitant amounts of money influencing elections. As Heather Parton pointed out at Digby's blog, "The fact is that nothing any wealthy individual like Sheldon Adelson is doing in this cycle is a result of that ruling." Since the 1976 Supreme Court decision in Buckley v. Valeo, which first constitutionalized the idea that money is speech, individuals in their private capacity have been able to spend an unlimited amount of money on political ads. In the pre-Citizens 2008 presidential race, for example, independent expenditures reported to the Federal Election Commission totaled more than $162 billion. Citizens United did not affect the legality of wealthy donors' independent expenditures: Since Buckley first brought personal expenditures under First Amendment scrutiny, the only restriction was that individual political spending had to be "uncoordinated" with the candidate so as not to qualify as a direct contribution, which remains subject to strict per-person limits.
What did change as a result of Citizens United was that wealthy individuals were permitted to pool their money with other donors in super PACs. Those other donors can now include corporations and unions in addition to private persons. But in terms of private individuals' ability to give, nothing has changed. As Parton argues, part of the problem is that the rich are richer, hence more influential, and our political culture has become much more tolerant of heavy spenders. To this, I would add that another major advantage conferred to wealthy donors by the existence of super PACs is that making independent expenditures has become much easier. One of the more burdensome aspects of making independent political contributions has been finding a company to create and disseminate advertisements. With super PACs able to hire staff and focus on these tasks full time, all donors have to do is provide the money; they eliminate a lot of coordination costs and help political spending go further.
It's intriguing to ask whether super PACs would have come into being without Citizens United. The super PAC came into existence as a result of a March 26, 2010 decision, SpeechNow.org v. FEC, handed down two months after Citizens United. Before that, individual contributions to PACs were subject to a $5,000 limit, regardless of whether the PAC intended to use that money on political expenditures or make contributions directly to candidates. But in SpeechNow, the D.C. Circuit Court of Appeals held that Congress could not place contribution limits on PACs so long as they only used that money for political expenditures (not funnel that money to candidates). Relying on the Speechnow decision, the FEC registered the first super PAC in June 2010. More than 260 super PACs were registered by the end of 2011. While Citizens United opened the floodgates for corporate money, it was actually SpeechNow that gave rise to the money-pooling structure of super PACs.
SpeechNow was certainly much easier to decide given the precedent set by Citizens United, but there were other precedents that might have brought the D.C. Appeals Court to the same conclusion. In 2008, for instance, the Fourth Circuit came to almost the same conclusion as SpeechNow and struck down contribution limits to advocacy groups that spend independently on political activity without making candidate contributions. In SpeechNow, the Court did rely on Justice Anthony Kennedy's assertion in Citizens United that "contributions to groups that make only independent expenditures cannot corrupt or create the appearance of corruption." But as demonstrated in Justice Harry Blackmun's decisive concurrence in another case, California Medical Association v. FEC (1981), if the Court wanted to get to super PACs, Buckley had already put down most of the necessary groundwork. Determining whether Citizens United gave rise to the super PACs is something of a game of hypotheticals. What Citizens United did do was to ensure that if super PACs exist, they would also be allowed to accept corporate money.
To the extent that concentrated non-corporate wealth corrupts policy and distorts the fairness of elections, however, simply overturning Citizens United will not go deep enough. A more thorough rethinking of political corruption, if not a different understanding of the First Amendment in the context of democratic elections, might be necessary to bring policymaking back under democratic control.
