Salon is out with an interview today with Floyd Abrams (noted First Amendment lawyer and campaign finance law opponent). Abrams took the NY Times to task for blaming the $5 million Adelson contribution to Super PACs on Citizens United. Abrams says it is Buckley v. Valeo, recognizing an individual’s right to spend money on elections, not Citizens United, which is responsible for the emergence of Super PACs.
That’s not the whole story, and misses the relevance of Citizens United.
Here are the main points.
1. Before Citizens United, individuals could indeed 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 happened. And corporations or unions could not play in this way.
2. Before Citizens United, an individual who wanted to spend money to influence a federal election but who did not want his or her name plastered across every ad sometimes gave to groups which came to be known as “527s” (for a particular provision of the tax code). 527s claimed they could take unlimited money from individuals (and sometimes claimed a right to corporate and labor union money) on grounds that they were not PACS under the FEC definition of PACs. These 527s were somewhat successful (George Soros gave $23 million to try to help pro-Kerry 527s in 2004 get Kerry elected), but a legal cloud always hung over them. I remember well when Bob Bauer, then 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.
3. After and following Citizens United, the courts (most importantly in Speechnow) and the FEC provided a blessing for independent only expenditure committees (Super PACs) to collect unlimited sums from individuals, labor unions, and corporations. 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 or illegality before Citizens United is of fully blessed legality after Citizens United. So Citizens United allowed for independent spending to flourish, in ways that it could not before.
4. On top of this–and here is where Abrams is right–through no fault of the Supreme Court in Citizens United, it has become quite easy to evade or avoid adequate disclosure. Part of this came about because three Republican Commissioners on the FEC have embraced an anti-disclosure reading of the statutes and regulations. Part of it requires a legislative or regulatory response, so that individuals cannot give to a 501(c)(4) (such as Crossroads GPS or Colbert’s Super PAC SHHH) to shield their identity as money is transferred to the Super PAC (such as American Crossroads or the Colbert Super PAC.) Part requires tightening up the time frame for disclosure of Super PAC contributions. (Most Super PACs now won’t be disclosing their funding until the presidential nomination on the Republican side is all but locked up.) But there is no political will among Republican Commissioners at the FEC or among Republicans in Congress to fix the disclosure problem. Disclosure, which used to be supported by a bipartisan consensus, has gotten entangled in this morass.
Bottom line: Citizens United has led, indirectly but surely, to the emergence of Super PACs. But it is up to Congress, not the Supreme Court, to fix the disclosure problems with Super PACs.