According to the Times, Pro-Republican Speech Is Not Technically Illegal, but It Should Be


With Election Day just a couple of weeks away, The New York Times is intensifying its efforts to make "the torrents of money, much of it anonymous, gushing into House and Senate races across the country" into "the dominant story line of this year's midterm elections"—a story line in which Citizens United "remains the touchstone," despite a lack of evidence that the Supreme Court decision has had much to do with those gushing torrents. Sunday's "Week in Review" section included a piece by Jill Abramson in which she likens the current situation to the illegal corporate contributions collected by Richard Nixon's notoriously shady 1972 re-election campaign. "This election year," she notes, "is the first since the Supreme Court's Citizens United decision, which allows corporations for the first time to finance ads that directly support or oppose political candidates."

Not that Citizens United had anything to do with corporate campaign contributions, which remain illegal. "In this year's midterm elections," Abramson concedes, "there is no talk of satchels of cash from donors. Nor is there any hint of illegal actions reaching Watergate-like proportions. But the fund-raising practices that earned people convictions in Watergate—giving direct corporate money to a campaign and doing so secretly—are back in a different form in 2010."

In other words, businesses are supporting independent organizations such as the U.S. Chamber of Commerce and Karl Rove's Crossroads GPS, which are running ads that criticize Democrats. Not technically illegal, but anathema to Democrats—just like Richard Nixon!

In today's Times, Michael Luo reports that some independent groups, including Crossroads GPS, are using the freedom granted by Citizens United to engage in "express advocacy," explicitly calling for a candidate's election or defeat (usually the latter). Others, including the Chamber of Commerce, are sticking to "issue ads," apparently worried about running afoul of tax rules that say 501(c)(4) "social welfare" organizations and 501(c)(6) trade associations are not supposed to focus mainly on partisan politics. But as Luo notes, the issue ads manage to communicate a pretty clear view about the virtues of particular politicians. Indeed, the whole premise of McCain-Feingold's ban on "electioneering communications," which applied to any message sponsored by a union or corporation that mentioned a federal candidate close to an election, was that issue ads had made a joke out of the ban on express advocacy. If so, we should be no worse off now that the Supreme Court has overturned both bans than we were before McCain-Feingold was enacted in 2002 (taking effect after that year's elections).

Yet Luo, whose story is ominously headlined "Groups Push Legal Limits in Advertising," calls express advocacy "an important new tool afforded to outside interest groups that is reshaping the contours of this year's midterm elections." That thesis seems inconsistent with Luo's claim that issue ads and express advocacy are indistinguishable to "casual observers" (i.e., voters). But if there is an important difference between issue ads and express advocacy—so important that it can reshape the contours of an election—the main argument for the ban on electioneering communications was specious. Is that something that campaign finance reformers (a category that seems to include most Times reporters) are now prepared to admit?