Presidential Candidates

The Rap Against Super PACs

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We all know that Citizens United v. FEC, the 2010 case in which the Supreme Court lifted restrictions on political speech by corporations and unions, was responsible for Democratic losses in that year's elections. (Or maybe not.) What fresh horrors does greater respect for the First Amendment have in store for us this year?

According to The New York Times, casino magnate Sheldon Adelson's $5 million donation to Winning Our Future, a group supporting Newt Gingrich for the Republican presidential nomination, "underscores how the 2010 landmark Supreme Court ruling on campaign finance has made it possible for a wealthy individual to influence an election." But as The Washington Post notes in an editorial decrying the impact of Citizens United, "individual supporters long have been free to spend…as much as they wished as long as they did not coordinate with campaigns." So it's not true that Citizens United suddenly "made it possible for a wealthy individual to influence an election."

But it is true that Citizens United, combined with subsequent court decisions, made "super PACs" like Winning Our Future possible. Unlike standard political action committees, which donate money to political campaigns and must obey contribution limits, super PACs spend their money on independent advertising and can receive unlimited contributions, including money from unions and corporations as well as individuals. While billionaires like Adelson do not need Super PACs to express themselves, such organizations do enable people of more modest means to pool their resources, and they offer one way for unions and corporations, including nonprofits organized under Section 501(c)(4) of the Internal Revenue Code, to exercise the speech rights recognized in Citizens United.

Why is that bad? In a CNN interview on Monday, Sen. John McCain (R-Ariz.), who co-sponsored the law that imposed the speech retrictions overturned in Citizens United, said it's bad because the speech is so negative. He blamed the Supreme Court, even though one of the main examples discussed in the interview involved words coming out of Newt Gingrich's own mouth, which have always been a cost we must pay for freedom of speech. McCain, like the Times, cited Adelson's donation to the pro-Gingrich group, which is using the money for ads attacking Mitt Romney, the candidate McCain favors. That seems only fair, since a pro-Romney super PAC, Restore Our Future, has been running anti-Gingrich ads. McCain said negative campaigning works, which is why it is so common, but also backfires on the messenger. "I think it's a real danger," he said, "and obviously I'd like to see it over with a Romney win in South Carolina followed by one in Florida." Translation: Negative campaigning is a necessary evil until my guy wins. 

I have never understood the complaints about negative ads, which on the whole seem much more useful and informative than positive ads. The only positive ad I can recall that helped clarify things for me was the one in which Rick Perry expressed dismay at openly gay soldiers, and that was effective only in the sense that it lowered my opinion of him. Richard Hasen, an election law expert at U.C.-Irvine, has a more plausible concern about super PACs:

Given the expected vast spending by presidential candidates and parties in the general election, I am not very concerned that Super PAC spending will influence the outcome of the presidential election, though it might.

I am not even that concerned about Super PAC negative advertising, which can serve to educate the public and mobilize some voters to become more politically engaged.

But I am concerned that Super PAC spending will influence the outcome of close Senate and congressional races. And I am greatly concerned that when Election Day is over and the public will stop hearing about Super PACs, contributions to these groups will skew public policy away from the public interest and toward the interest of the new fat cats of campaign finance, as members of the House and Senate thank their friends and look over their shoulder at potential new enemies.

As Hasen points out, the Supreme Court's shaky distinction between spending (speech) and campaign contributions (not speech) is even shakier now that groups like Winning Our Future, Restore Our Future, and Back to the Future (my suggestion for a pro-Paul, constitutionalist super PAC) are run by politicians' former staffers and funded by familiar campaign supporters. The super PACs are prohibited from "coordinating" with candidates' campaigns, but politicians are still apt to be grateful to the people who help them win elections, which is a tendency to keep in mind while evaluating the performance of elected officials. Still, the possibility of corruption does not override the First Amendment. If super PACs are yet another attempt to get around the contribution limits upheld in Buckley v. Valeo, why not avoid the pretense by scrapping those limits once and for all, instead of imposing new rules that give rise to new "loopholes," which trigger new rules, ad infinitum? As The Wall Street Journal notes in a recent editorial, "the real loophole is the U.S. Constitution." 

I considered the overwrought reaction to Citizens United in the December 2010 issue of Reason.

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  1. It has been fascinating arguing with Facebook friends about CU. As bright as they are, they just don’t seem to ever get beyond slogans: “Corporations are not people!” “Money is not speech!” “We have to stop the plutocrats from buying elections!”

    None of them can explain why the NY Times should have speech rights before an election, but a few people selling a Hillary Clinton DVD should not. None can explain exactly how free speech rights evaporate as soon as people band together into a corporation, profit or non-profit. None will confront the issue that McCain-Feingold essentially allowed the banning of books and films. Nobody will admit that the highest spending candidate doesn’t have a lock on an election. Etc.

    1. These ideas are not addressed in the NPR talking points and therefore not valid arguments. Why do you want old people dying on the streets, racist?

    2. I agree fully. Fox News is a 24/7 political ad for the GOP and CU had no effect on its status.

      But someday a foreign organization will fund a giant SuperPac and the shit will really hit the fan.

      1. You mean like AIPAC? Or my personal favorite.

      2. when George Soros not only funds a super PAC but also a variety of left wing agitprop groups, that’s close to a foreign organization. And a good many would say that Obama’s coronation WAS the shit hitting the fan.

        1. Soros has been an American citizen for over 40 years.

          Quit listening to Beck/Hannity etc.

          1. he is his own super PAC, funder of Media Matters and a host of other left-wing groups, and on and on. And I said “that’s CLOSE to…” The left gets touchy when its oxen are gored.

            1. Soros has been an American citizen for over 40 years.

              And before that, he put teh jooz into cattle cars to be transported to Auschwitz.

              1. Nah. He just pilfered their stuff after they were shipped off to Auschwitz.

      3. “But someday a foreign organization will fund a giant SuperPac and the shit will really hit the fan.”

        Damn foreigners!

      4. Or as the Germans say “dey turk er jerbs”.

    3. Just ask them how expensive an add need be in order to make them vote for *insert most odious member of opposite team here*.

      For instance, if you’re talking to some lefty fool, ask them how expensive an add must be in order for them to vote for Sarah Palin.

      Then when they say that they would NEVER vote for Palin, tell them to SHUT THE FUCK UP.

  2. I don’t think anything short of outright gratuitous, extremely generous (think seven+ digits) vote buying could get me to even considering pulling the lever for Gingrich.

    1. Anyone care to put a dollar on how much it would cost for them to check the block for Romney/Santorum/Gingrich?

      1. The cost of a plane flight to Hawaii, two weeks accommodation in the Waikiki Parc, and enough blow and hookers to last me the two weeks.

        What can I say, I’m a cheap date.

        1. I’d demand they hand over a naked Julie Louis-Dreyfus because she’s so fucking hot.

          1. Yeah but Geena (or however the fuck she spells her name) Davis actually was hot when she was young.

      2. At least in the tens of thousands.

        Just bought a house, not feeling as financially secure as I did a month ago.

        (Yes, I bought one I could afford, but it’s still a giant expense.)

  3. It’s a Super PAC, Super PAC, super PAC-y…

    1. Super PAC Man, I am adamantly opposed to.

  4. Has anyone mentioned that Adelson’s contribution to Gingrich’s super duper PAC has done jack for Gingrich’s actual election chances (at this point roughly zero)? A couple of 4th places in the first two primaries doesn’t exactly sound like all this money has suddenly overturned democracy.

    1. Yeah, but Romney’s pals Super Pac did a really great hit job on Newt in Iowa. If Newt stays close in SC Adelson could pump $50 million into Florida for him.

      1. Pauls attacks were harder hitting. Did anyone poll iowans what made them vote against newt. Didn’t think so.

        1. but since Paul was a ‘front-runner’ at the time, the narrative was that Romney was the sole source for anything even remotely negative about Newt. After Paul’s poll numbers and subsequent vote tally rose, the crosshairs appeared on his back. The establishment has used every conceivable euphemism for crazy in attempting to marginalize and dismiss both him and anyone who supports him. Big govt dies hard.

      2. great hit job on Newt in Iowa

        With that big a target, how could they not hit it?

      3. shrike|1.12.12 @ 8:38PM|#
        “Yeah, but Romney’s pals Super Pac did a really great hit job on Newt in Iowa.”

        So your answer is “no”.

  5. In the end there are so many information sources now, one more doesn’t really mean anything anymore. Let them spend millions spreading whatever comment they want. One trip to wikipedia will answer most accusations posted by these super pacs.

  6. Sen. John McCain (R-Ariz.), who co-sponsored the law that imposed the speech retrictions overturned in Citizens United, said it’s bad because the speech is so negative. He blamed the Supreme Court, even though one of the main examples discussed in the interview involved words coming out of Newt Gingrich’s own mouth, which have always been a cost we must pay for freedom of speech.

    I don’t think that I have ever heard of a stronger defense of Liberty. Jacob Sullum is the modern Voltaire.

  7. OT: Barr is endorsing Newt Gingrich. WTF?!?!?

    1. Gingrich is a Serious Candidate. Unlike someone else.

      1. Newt and Barr go back to the Nineties and the Great Apocalyptic Impeachment Battle, when Barr stood for Truth, Justice and Zero Tolerance for fooling around with staff on the public dime whilst being married to someone else.

  8. I never understand why people bitch about Corporations and PAC’s but disregard the fact that Unions contribute more directly to political campaigns than anything handed out by PACs, in fact Union spending on campaigns dwarfs any other source exponentially.

    Oh no wait, I know why. People are stupid.

    Never mind.

    1. People are stupid.

      And they are hypocrites.

    2. it’s not people, per se, who bitch about corporations; it’s liberals because they have no issue with the money-laundering that is union contributions. It’s not about being stupid; it’s about protecting the left’s self-interest.

      Just think about it: you force people to join an organization in order to work someplace, then you force them to hand over part of their paychecks, and you use it for whatever purpose you want irrespective of what the earner of that money thinks.

  9. “Sen. John McCain (R-Ariz.), who co-sponsored the law that imposed the speech retrictions overturned in Citizens United, said it’s bad because the speech is so negative.”

    John Adams signed the Alien & Sedition Acts for much the same reason, although negative campaigning in Adam’s day made today’s negativity look like a pillow fight.

  10. The Suoerpac are anything but independent. That is the lie at the center of this. the major supepac for each of the frontrunners is run by either a former campaign manager or a long time co-conspirator.

    1. So….

    2. nebby|1.12.12 @ 9:13PM|#
      “The Suoerpac are anything but independent. That is the lie at the center of this.”

      There’s no “lie” in the article. The only “lie” would be if someone claimed they were “independent”.
      And please provide a definition for that.

      1. SuperPACs are legally required to operate independently from any candidate they might support. They are not allowed to coordinate any activities with any candidate they might support.

    3. Not a regular conspirator, mind you, the much more insidious co-conspirator.

  11. The Paulbots are pretty effectively demonstrating that with crowdsourcing even SuperPAC’s will be obsolete, at least as an aggregation tool.

    If the Paulbots can manage direct mail in multiple states by slapping up a website and having people just click on a link to mail out X brochures, next cycle someone will make TV and radio spots and put up a website doing the same thing. Why use a PAC? Every individual can undertake their own speech. Fuck you FEC.

  12. Nikki Haley just announced on Hannity she is not interested in a VP offer; who’ next on the list?

    1. I don’t want to be VP either. But I’d accept the office if offered. No-one is too big to make sacrifices for his country.

      1. She was adamant; it seemed obvious to be she had been approached, and decided against it

    2. Romney and Obama should offer each other the veep spot, reciprocally.

      1. How else can they exchange long protein strands?

        1. Okay Ed, give yourself a point. You got me to spew coffee on my keyboard.

  13. I don’t know why, but I really, really love SuperPacs. I know that it is irrational, and that she will just leave me when I have outlived my usefulness, but I really, really love SuperPacs.

  14. Citizens United was terrible because it allowed for louder alternate voices to the media establishment during elections, making it slightly harder to manufacture surges or render candidates invisible.

    Oh well, there’s always SOPA.

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    1. For the record, I have nothing to do with this and it’s a smear.

  17. I think it’s safe to say that whatever spam filter Reason is employing constitutes a market failure.

  18. The Ron Paul-loving RevolutionPAC brings out good videos. Check out their YouTube page.

    Unless you believe in justice for the workers of the world against the capitalistic hordes of injustice and inequality! PROLETARIANS OF THE WORLD, UNITE!

    1. I don’t understand your last sentence I thought liberty benefited the powerless over the powerful.

  19. If you believe that the decision in Citizens United vs the FEC was based on “greater respect for the First Amendment”, then you need to turn in your Reason badge and go home. This might be the public position of Reason Magazine, but it is not a Reasonable or even Rational position.

    Oddly enough, Stephen Cobert has, over the last year or so, produced a number of segments both interesting and educational based on the adventures of creating his own SuperPAC. Last night’s episode of this oddessy highlighted just how flimsy the non-collaboration provisions are.

  20. What if we as shareholders forbid our companies from spending our money on candidates or PACs? I would rather get the money back in my dividends. I can decide to spend it on politics, or go out to dinner, or pay the electric bill.

  21. “the possibility of corruption does not override the First Amendment.” But Super PACs don’t even really “corrupt.” Hasen’s argument is that an officeholder will be grateful to Super PACs, and so might reward those who donated to Super PACs. Well, heaven forbid that an officeholder might be grateful to those who supported him. “I’m shocked, SHOCKED to discover gratitude in this establishment!” Thankfulness and gratitude are not corruption.

    If government has too much power for grateful officeholders to reward their supporters, that can be addressed without silencing freedom of speech.

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