Last month I put up a post which responded to Floyd Abrams (in a Salon interview) on the question whether Citizens United led to Super PACs. Floyd said no—individuals could always spend as much as they wanted on elections since Buckley v. Valeo. I explained that this reasoning was too simplistic, and that in fact there were legal impediments to people banding together to spend their money through a group (something which many people would like to do so as to not be publicly accountable for their spending). And further, before Citizens United, corporations and labor unions could not give a penny (aside from paying administrative costs of their own PACs) to any PACs.
Today Floyd’s son Dan Abrams (an excellent journalist—I’ve been on his show), takes on the media’s portrayal of Citizens United. He’s absolutely right that many commentators and editorial writers too easily state that Citizens United is solely responsible for the rise of money in elections. And these commentators are dead wrong in saying that Citizens United endorsed a regime of no disclosure of such funding.
But Dan is wrong in saying it is a “myth” that Citizens United “opened the door to wealthy individuals like Sheldon Adelson to pour millions of dollars into PACs.” For reasons I’ve explained in my earlier post linked above, this is no myth. The path from Citizens United to super PACs may be indirect but it is there. And it is not just a “psychological” effect of the decision. As Dan, a lawyer, knows, people respond to legal incentives. In 2004 and 2008, individuals who contributed large sums were threatened with criminal prosecution. Corporations and unions certainly would face criminal prosecution for giving sums to be used to pay for election ads. Today, this is all perfectly legal.