- Talking Points Memo, today: “Super PACs Already Spending Big On State Level Races”
- Business Week, May 5: “Buffett Shuns Super PAC Contributions While Backing Obama”
- Huffington Post, May 4: “Ron Paul Is Benefiting The Least From Super PACs Among Presidential Candidates”
- USA Today, May 4: “Crop of college super PACs answer call of Stephen Colbert”
One of the goals of this blog is to set the record straight on Citizens United and its effects and a new piece by Trevor Potter (former Commissioner and Chairman of the Federal Election Commission and Stephen Colbert’s lawyer) achieves that goal very effectively.
The Supreme Court’s ruling in Citizens United allowed them. Political candidates rely on them. And Stephen Colbert parodies them. But as a former chairman of the Federal Election Commission and the lawyer behind Colbert’s super PAC — Americans for a Better Tomorrow, Tomorrow — I find that most people don’t understand the role that these largely unaccountable organizations play in American politics. As the GOP primary race draws to a close, let’s take a look at some common misconceptions about groups powerful enough to evade traditional limits with a single bound.
Click here for the five myths and Potter’s explanations.
There’s no question that wealthy individuals have been pouring a ton of money into super PACs this presidential election and that despite the fear that Citizens United would lead to an avalanche or corporate spending, wealthy individuals, not corporations, are the vast majority of super PAC contributors.
But as a recent op-ed in the Los Angeles Times points out, individuals have long been able to spend unlimited amounts of their own cash in elections as long as that money wasn’t directly to the candidates. And yet, super PACs have altered the how political speech has been disseminated this election cycle. The op-ed, which quotes from a Washington Times piece, explains but is then skeptical of one theory of why super PACs caused a change:
Strangely, according to the Washington Times, moguls didn’t take much advantage of the opportunity. Why not? “The fact that the wealthy businessmen now funding independent ads have long been permitted to do so, yet rarely did, indicates an extraordinary desire to remain behind the scenes.” The story quoted Bill Allison of the Sunlight Foundation, who noted: “The thing with individuals buying an ad themselves is you’re putting yourself out there as the person behind it. You’d have to have a message saying, ‘This ad is brought to you by Bob Smith.’ ” But this isn’t a totally satisfying explanation because individuals who donate to super PACs are eventually outed, as [major super PAC donors Foster] Friess and [Sheldon] Adelson were.
The last sentence leads to another question not yet answered. Have super PACs somehow emboldened these affluent individuals to donate more than they have in the past or will the fact that the public knows who is funding the super PACs lead to a different approach by the wealthy in the future?
While the vast majority of super PAC money has come from very wealthy donors, there are individuals contributing two-figure sums that the media generally does not consider newsworthy. Today at Salon, Molly Reddenlooks at some of the small-time donors who have contributed to Restore Our Future, Mitt Romney’s super PAC.
Mort Zuckerman has a piece at U.S. News and World Report today on Citizens United and the state of campaign finance. The news site best known for its college and grad school rankings also offers a plethora of super PAC-themed cartoons.
In January, Massachusetts Republican Senator Scott Brown and his Democratic challenger, Elizabeth Warren, agreed to get super PACs out of their campaigns. But since super PACs are by definition independent contributors to election efforts, they could not simply ban super PACs from making independent expenditures. Instead, they agreed that if a super PAC advertised for one of them, that candidate’s campaign would donate half the amount of the advertisement to the charity of his or her opponent’s choice. Earlier this week, the agreement was enforced when Senator Brown donated approximately $35,000 to an autism charity in response to an advertisement supporting Brown even though it did not mention him by name.
This blog reported last month that comedian Stephen Colbert has been using his wildly popular Comedy Central show, the Colbert Report, to educate his viewers on the Citizens United decision and super PACs. Today we are reporting that the Colbert Report has been given a George Foster Peabody Award at the 71st annual Peabody Awards.
The award is a long honored recognition of distinguished public service by radio, television, and network organizations and individuals without factoring popularity or success of the program.
In a reflection of how Americans continue to feel strongly about the rise of “money politics” in the wake of the Supreme Court decision in Citizens United v. FEC, the Peabody award panel stated, “Comedy Central’s ‘The Colbert Report’ won its second Peabody for its deadpan anchor’s ‘Super PAC’ segments lampooning the rise of megabucks politics.” Further commenting, they revealed, “Launching his own Super PAC as a satirical protest against megabucks politics, Colbert mixed cerebral comedy with inspired sight gags, interviews and preposterously funny monologues.”
Maintaining his comedic stance of protest against the Supreme Court’s decision Colbert said in response, “What an honor! I am truly speechless. Luckily, thanks to Citizens United, my money can speak for me.”
The Citizens United decision and the resultant super PAC emergence in the American political process continues to be a hot button topic with many highly respected scholars and public figures landing on both sides of the issue. For a deeper look at the heart of the decision and its impact, be sure to attend the Citizens United forum in Jamaica Plain, Boston on Wednesday April 11. Panelists to discuss the decision and take questions from the audience include State Senator Jamie Eldridge (D-Acton), President of the New England Legal Foundation Martin Newhouse, constitutional law scholar Professor Lawrence Friedman and WGBH journalist and former Washington Post reporter Ibby Caputo.
Below is the press release for the panel being held in conjunction with this blog
Citizens United Forum Presented by Students of Boston College Law School
A collaborative of Boston College graduate students will be hosting a panel on the subject of Citizens United and campaign finance reform in Jamaica Plain on April 11 at 7pm. Panelists will include State Senator Jamie Eldridge (D-Acton), President of the New England Legal Foundation Martin Newhouse, constitutional law scholar Professor Lawrence Friedman and WGBH journalist and former Washington Post reporter Ibby Caputo. Admission to the forum is free and residents of Boston and the surrounding communities are encouraged to attend and learn the reasoning behind this important Supreme Court decision and the rationale of the opposition.
“People should care about the Citizens United decision because it is having an effect on the way democracy is practiced in this country, about the way elections work and who gets elected and why,” said Professor Lawrence Friedman, a professor of constitutional law at New England Law | Boston and a panelist for the forum.
In January of 2010 the U.S. Supreme Court delivered a decision on Citizens United v. FEC, which displaced crucial portions of the McCain-Feingold bill related to political campaign spending limits. Regularly thought to stand for the prospect that corporations are people, in reality it is a far more complicated decision based on a constitutional interpretation of the First Amendment’s right to free speech. The Citizens United decision has ultimately lead to the establishment of super PACs (Political Action Committees) which facilitate unrestricted spending on political advertising by corporations, labor unions and wealthy individuals, and which have allegedly resulted in a shift in the political landscape.
Though heavily criticized by some as a means by which certain parties will be permitted to unfairly influence elections, others, including panelist Martin Newhouse, believe the Citizens United decision replaces a poorly conceived statute and will create a better informed public.
The Citizens United decision has created a unique variety of responses. It is one of the few highly controversial issues on which the traditionally conservative National Rifle Association and the traditionally liberal American Civil Liberties Union find themselves in agreement; both parties supporting the decision. Despite that star-crossed alliance, there is a large and loud movement in opposition to the decision, some parties, including panelist Eldridge, proposing an amendment to the U.S. Constitution that would in essence reverse the Citizens United decision.
“For over a century, Congress and the states have limited the role of money in the political process due to its inevitably corrupting influence,” said State Senator Eldridge. “We need to take action to ensure that the right of free speech is preserved for citizens, not corporations and that we require new levels of disclosure and transparency for corporate political spending and prohibiting foreign corporations from influencing elections.”
The informed citizenry of the United States is rightfully abuzz with commentary on the subject of campaign finance reform and the Citizens United decision. Attending the Citizens United public forum on April 11th or monitoring the supporting blog site at http://citizensunitedlegalforum.tumblr.com are easy ways to become better informed no matter what your political persuasion.
The panel will take place at the United Universalist Church located at 6 Eliot Street in the Jamaica Plain neighborhood of Boston and will begin at 7:00 PM.
Days after Citizens United v. FEC was decided, President Obama famously said at his 2010 State of the Union address that he believed the decision would “open the floodgates for special interests - including foreign corporations - to spend without limits in our elections.” There may be loopholes which allow foreign corporations to donate through American entities, but not only are corporations generally not funding super PACs, the ban on money accepted directly from foreign corporations appears to be being followed. Last month, Rick Santorum’s super PAC returned a $50,000 donation from such a corporation.
The Internal Revenue Service has also said non-profit organizations under 501(c)(3) of the Internal Revenue Code (which applies to charitable organizations) are banned from contributing to super PACs. (In contrast, non-profit social welfare organizations organized under Section 501(c)(4) of the Code may donate to political causes as long as that is not their main activity. Professor Rick Hasen has more on 501(c) non-profit donations after Citizens United) This ban from the IRS led to Mitt Romney’s super PAC refunding a $100,000 check from a 501(c)(3) charity.
But here’s the important question from a legal standpoint: under the holding of Citizens United, should either of these bans be constitutional?
With regard to free speech, the First Amendment states, “Congress shall make no law…abridging the freedom of speech.”
One of the virtues of the First Amendment is it protects speech that the public or the government doesn’t like to ensure that those in power can’t suppress ideas they find threatening. Political speech is given the highest protection by the Supreme Court. This speech is so highly protected that the Court has allowed people to advocate violence (as long as it is only speech and would not directly incite violence) and use profanity to express a political message in a courthouse. Both of those decisions are now over forty years old but are still accepted law. (For more on the second case, there’s a fascinating but not-suitable-for-work law review article on the topic.)
More recently, the Court has read the free speech element of the First Amendment broadly, both in Citizens United in 2010, and in Sorrell v. IMS, decided last year, which held Vermont’s interest in regulating health care did not outweigh the free speech rights of companies in the medical industry. (The one exception to the Court’s recent First Amendment interpretation was Holder v. Humanitarian Law Project, a national security case in which the Court ruled the conduct was distinct from pure speech because there was coordination with designated foreign terrorist organizations. Even in that case, the Court acknowledged pure political speech on behalf of terrorist organizations was protected.)
If corporations are persons for the purposes of free speech, then it seems to reason that all corporations, including foreign corporations and all non-profits, should be given the same right under the First Amendment. (As an aside, this Court hasn’t ruled corporations are persons for all purposes. In ruling last year that AT&T was not a person under the Freedom of Information Act, Chief Justice Roberts humorously concluded: “The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.”)
A look at the language of Citizens United indicates its holding may, in fact, extend to foreign corporations and 501(c)(3) non-profits. The Court, echoing its holding from decades earlier, asserted that “political speech must prevail against laws that would suppress it” based on that principle that “Speech is an essential mechanism of democracy.” Political speech can be limited in certain situations, the Court acknowledges, but the standard is “strict scrutiny” which requires the government to prove that the restriction “furthers a compelling interest and is narrowly tailored to meet this interest.” The Court noted “Speech restrictions based on the identity of the speaker are all too often simply a means to control content.” Therefore, it found “no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.” Does logic then lead to the proposition that foreign corporations and 501(c)(3) non-profits should be just as protected as other corporations?
Perhaps foreign corporations are exempt from the holding because to the extent corporations are people, they are not American and don’t have the rights of citizens. But the First Amendment does not specifically apply to citizens. The Bill of Rights, including the First Amendment, refers to “people” while the other provisions of the Constitution refers to “Citizens” for rights reserved only to that select category of people. (Update: On the other hand, earlier this year the Court affirmed a lower court opinion upholding a provision of the Bipartisan Campaign Reform Act banning foreign nationals from making political contributions.)
And with regard to any possible distinction among categories of non-profit organizations, here’s the Citizens United Court: ”No sufficient government interest justifies limits on the political speech of non-profit or for-profit corporations.” For 501(c)(3) organizations to be banned from political contributions, the Court would need to find the IRS has a more compelling reason to restrict speech than the FEC.
Professor Rick Hasen, an expert on election law and author of the Election Law Blog (which kindly linked to us), posted his slides from his presentation at Stanford Tuesday entitled “Citizens United, Campaign Finance, and Non-Profits.” It’s certainly worth a look even for those already well-acquainted with the legal issues in the case.
An editorial in today’s New York Times (published online yesterday) criticizes a super PAC whose goal it is not to advance a political agenda but to challenge incumbents. It makes some good points but there is one line in its conclusion on super PACs generally that deserves further exploration: “Attack ads, which are their stock in trade, are tainting the political process and turning off many voters.”
While John McCain may agree with this statement, it would nice if that belief could be corroborated with more than just intuition. As Nick Gillespie of Reason has argued, despite McCain’s objection to the tone, negative ads actually contain more information for voters than positive ads. And it’s not just a libertarian magazine that sees the benefit. This week, Paul Begala, Democratic commentator and now adviser to Obama’s super PAC, published a piece in Newsweek praising negative ads because he finds them more engaging.
Yesterday, on the March 18th episode of NBC’s Meet the Press program, Republican Senator from Arizona, and former Republican presidential nominee, John McCain appeared as host David Gregory’s featured guest. When questioned on the current Republican presidential primary process, the Senator, a ranking member of the Armed Services Committee and widely respected by Republican and Democratic Congressmen alike, took the opportunity to blast the United States Supreme Court over its decision in Citizens United v Federal Election Commission while lamenting the prominent role Super PACs have come to play in the American political process.
Senator McCain, who has endorsed former Massachusetts Governor Mitt Romney in the Republican primary race, responded to a question asking why Mr. Romney had yet to seal the deal on obtaining his party’s nomination to run against President Barack Obama in the upcoming election. Senator McCain placed a large amount of the blame on the emergence of Super PACs stating, “Super PACs have played a key role, unfortunately in my view, because most of them are negative ads, they’ve driven up the unfavorables of all the candidates and made it much more difficult frankly to win the election in November.”
McCain described this current election season as the “nastiest” he has ever witnessed and placed the blame squarely on the presence of Super PACs. “When you have a Las Vegas Casino mogul, by the way who gets part of his money from Macau, pouring 20 million dollars into one campaign and most of those are negatives ads, obviously those drive up people’s unfavorable” noted McCain.
However, the Senator did not stop there and proceeded to explicitly attack the Supreme Court, declaring the election climate is, “a result of the worst decision the United States Supreme Court has made in many years - the Citizens United decision – where out of naivete and sheer ignorance, the majority of the Supreme Court just…released all money, now, there will be scandals David, there will be scandals and then maybe we will reform again.”
Thank you to Professor Richard Hasen and the Election Law Blog for featuring a link to this blog. For those who want more background on the origins of this blog, below is a description of the project:
Citizens United v. FEC, decided in January 2010, was one of the most controversial Supreme Court decisions in recent years with an impact that is only now fully being felt. The decision struck down provisions of the bipartisan-led McCain-Feingold Act, which limited spending for political purposes by corporations, unions and wealthy individuals. The Supreme Court ruled that these limitations imposed unconstitutional restrictions on the First Amendment right to free speech. The ruling led to the creation of super PACs (Political Action Committees), which can raise unlimited amounts of money for political purposes as long as they do not coordinate directly with the candidates.
As this year’s presidential campaigns take shape, the first since Citizens United was decided, the major Republican candidates have all seen large amounts of money pouring into their super PACs and despite criticizing the decision in a State of the Union address after it came down, President Obama has decided to embrace the formation of a super PAC supporting his reelection. Many people unhappy with the Citizens United ruling have advocated for a constitutional amendment to overturn the decision.
But does an amendment make sense? Russ Feingold, a chief sponsor of the now-invalidated limit, was highly critical of the decision, but opposed an amendment because he did not want to interfere with the Bill of Rights. The American Civil Liberties Union and liberal writer Eliot Spitzer both supported striking down this spending limitation because they felt the law violated an important First Amendment principle. Simply saying that corporations are not people may create unintended, and undesireable, consequences, even for those opposed to corporate interests. It may allow the government to nationalize entire industries or prevent anyone from being able to sue a corporation. Furthermore, it might not solve the problem of large donations unfairly influencing elections due to the fact that, as this election season has demonstrated, many of the super PACs are funded not by corporations, but by wealthy individuals. But at the very least, Citizens United has provided the nation with an opportunity to start a conversation about the issue of money in elections.
We started this blog to exercise our First Amendment right to engage in this conversation and inform our community. The conversation will culminate with a forum on April 11 in Boston featuring several prominent individuals already participating in the discussion: Senator Jamie Eldridge, former public interest attorney and sponsor of a resolution to Congress calling for an amendment in response to the decision; Professor Lawrence Friedman, a constitutional law professor at New England Law – Boston; Martin J. Newhouse, president of the New England Legal Foundation and law professor at Suffolk University; and Ibby Caputo, a reporter at NPR and PBS-affiliated WGBH and former Washington Post staff writer. They will each provide a unique perspective on the decision, its effects, and what, if anything, should be done. We hope to see you there.
When Citizens United came down two years ago there was a lot of fear it would lead to a major influx of corporate donations in elections. In his 2010 State of the Union address just after the decision came down, President Obama said he believed it would “open the floodgates for special interests - including foreign corporations - to spend without limit in our elections.” John McCain had predicted the super PACs that resulted from the decision would “destroy the political process.” Presumably both major party presidential candidates from the last presidential election worried the decision would lead to corporations controlling the messaging during the following presidential election.
But looking at the super PACs that have developed, wealthy individuals, not corporations, are the dominant donors. Corporations, it turns out, are giving less than half of one percent of all contributions raised by the most active super PACs. Below is a compilation of some of the biggest contributors.
Mitt Romney’s super PAC Restore Our Future received $1.25 million from Wall Street investor Julian Robertson, and two other wealth individuals gave $1 million. Many other financial investors contributed six-figure donations. Top Jewish donors have donated more than 10% of the total $36 million raised by Restore Our Future. Billionaire investor Ken Griffin donated $150,000 to Restore Our Future. Frank Vandersloot’s company Melaleuca donated $1 million. (Vandersloot is also co-chair of the Romney campaign.)
Las Vegas casino magnate Sheldon Adelson and his family have twice donated $5 million to Newt Gingrich’s super PAC Winning Our Future. (Adelson had said he could give $100 million to Gingrich or another Republican last month though that may have changed as he was recently sued for $375 million.) Before the super PAC received money from Adelson it had only raised $2 million. Three wealthy individuals, including Mrs. Adelson’s youngest daughter, have each donated $500,000 to the super PAC.
Rick Santorum’s super PAC, the Red, White and Blue Fund, received $1 million from energy executive William Dore and at least $331,000 from investor Foster Friess which was about 40% of its funding in 2011. (It also returned a $50,000 donation from a foreign corporation that may have violated American election law.)
Ron Paul has done very well at receiving small donations but like the other candidates his super PAC, Endorse Liberty, relies on the extremely wealthy. Billionaire PayPal founder Peter Thiel, who likes to keep a low profile, has donated the majority of Endorse Liberty’s funding: $2.6 million out of $3.4 million total.
Meanwhile, on the Democratic side, the pro-Obama super PAC Priorities USA Action, has received a $2 million gift from Dreamworks executive Jeffrey Katzenberg and a widely-publicized $1 million gift from political comedian Bill Maher as well as five- and six-figure donations from other wealthy individuals in entertainment and business including directors Steven Spielberg and J.J. Abrams and Chicago media tycoon Fred Eychaner. The Service Employee International Union has also been a major donor, giving Priorities USA Action a $1 million donation.
Today at Reason, Jacob Sullum makes the case that super PACs are good for democracy based on evidence from the current Republican primary season. This isn’t an entirely new argument from Reason as this short video from its blog in January demonstrates.