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.