Roll Call columnist Eliza Newlin Carney, who coined the term "Super PAC," has written a column titled “Some Super PAC Money Untraceable.”  The column discusses the findings of a report titled “Auctioning Democracy,” released by Demos and the U.S. PIRG Education Fund.

 

As Carney reports, “Since 2010, 6.4 percent of the itemized contributions underwriting super PACs could not be traced to their original source, the report found.”

 

Wait a minute . . . this is the torrent of secret money we keep hearing about?

 

It seems to us that the really newsworthy thing about the Demos/PIRG study is that, for all the “reform” lobby’s complaining about secret money in politics, a full 93.6% of itemized contributions to Super PACs can be traced back to their original source.

Washington Post columnist E.J. Dionne has been complaining about Citizens United v. FEC since before Citizens United was decided. In his latest attack on that ruling, Dionne argues that the decision doesn’t work “if you think we are a democracy and not a plutocracy.”  As famed First Amendment lawyer Floyd Abrams notes in a response, much of Dionne’s critique is based on false factual premises.

 

There is, however, another, more fundamental problem with Dionne’s critique. Like so many critics of Citizens United, Dionne largely ignores the intermediate step between political spending and electoral results:  voting.

 

Citizens United freed corporations and unions to spend money on political speech.  A later ruling, SpeechNow.org v. FEC—litigated by the Institute for Justice and the Center for Competitive Politics—freed individuals and groups to form Super PACs to do the same thing.  But neither ruling freed anyone to buy votes.  The most corporations, unions, or Super PACs can do is attempt to persuade American voters.

 

Dionne apparently believes that voters should be spared from hearing Super PACs’ speech.  But that sort of paternalism is precisely what the First Amendment forbids.  As the Court noted in Citizens United, “The First Amendment confirms the freedom to think for ourselves.”

On Monday night, President Barack Obama announced that he is giving his blessing to Priorities USA, a Super PAC supporting his reelection.  Campaign manager Jim Messina, writing at the Obama campaign’s official blog in a post titled “We Will Not Play by Two Sets of Rules,” declares that the change in position is a necessary response to Republican-favoring Super PACs.  Thus, even though the president supports a constitutional amendment to allow for “reasonable limits” on campaign spending, winning reelection has to come first.

 

If this sounds familiar that’s because four years ago the Obama campaign issued a nearly identical apologia for the then-Senator’s decision to renege on a promise to take part in the presidential public-financing system.  Then, as now, it was presented as a choice forced upon the campaign; he didn’t want to do it, but had to because the other side was “gaming” a “broken” system of regulations.

 

Such excuses are commonplace.  Self-styled “reformers” claim they have to work within the system to change the system.  But these excuses expose the hollowness of the arguments for stricter limits on campaign finance.

 

The theory behind campaign finance limits is that political spending causes corruption.  But there is no evidence to support this belief and good reason to believe that both political spending and corruption are driven by excessive government power.  Indeed, the response to the President’s change in position reveals that even the reform lobby doesn’t believe that political spending corrupts everybody.  The New York Times criticized the President’s decision as a betrayal of his stated principles, but made no suggestion that the President is personally more corrupt because of it.  Ditto Common Cause, which called the move merely “disappointing.”  Ditto Thomas Mann of the Brookings Institution, who described the move as “regrettable” but “inevitable.”

 

It seems that many people believe that the President is guilty, at most, of hypocrisy.  Perhaps they believe that the only candidates who are actually corrupted by money in politics are those who don’t think it’s appropriate for the government to ban or otherwise restrict peaceful political speech and association.  But that is not a serious account of political corruption—it’s just cheerleading for one’s preferred side of the political debate.

 

For our part, we don’t object to President Obama encouraging people to give to Super PACs supporting his reelection.  Nor do we believe that his decision to do so makes him any more or less corrupt.  What we do object to is the apparent belief by some that a political candidate can demonstrate integrity by promising to ban other people’s political expression once elected.

Most of the popular arguments against the U.S. Supreme Court’s ruling in Citizens United v. FEC boil down to two sound bites: “Money isn’t speech” and “Corporations aren’t people.” Both of these statements are obviously true. But neither has anything to do with whether political spending—even spending by corporations—is protected by the First Amendment.

 

IJ has made these points many times, but we’re not alone. Writing yesterday in the Huffington Post, law professor Geoffrey Stone explains why it doesn’t matter that money isn’t speech:

 

Even though an object may not itself be speech, if the government regulates it because it is being used to enable free speech it necessarily raises a First Amendment issue. Thus, a law that prohibits political candidates to spend money to pay for the cost of printing leaflets, or that forbids individuals to contribute to their favorite political candidates to enable them to buy airtime to communicate their messages, directly implicates the First Amendment. Such laws raise First Amendment questions, not because money is speech, but because the purpose of the expenditure or contribution is to facilitate expression.

 

Similarly, last month, law professor Kent Greenfield wrote an excellent takedown of the “corporations aren’t people” meme:

 

Citizens United did not hold corporations to be persons, and the court has never said corporations deserve all the constitutional rights of humans. The Fifth Amendment’s right to be free from self-incrimination, for example, does not extend to corporations.

 

In fact, saying corporations are not persons is as irrelevant to constitutional analysis as saying that Tom Brady does not putt well in handicapping the NFL playoffs. The Constitution protects the rights of various groups and institutions — whether Planned Parenthood, Bob Jones University or the AFL-CIO — though they are not “natural persons.”

 

Neither of these professors appears to be a fan of the result in Citizens United. Nevertheless, they recognize—as any honest critic must—that the most popular arguments against that ruling are empty slogans. We hope that other critics of Citizens United will follow their lead.

Slate’s U.S. Supreme Court commentator Dahlia Lithwick has written a paean to Stephen Colbert and his satirical Super PAC, Americans for a Better Tomorrow, Tomorrow.  As Lithwick sees it, the members of the Citizens United majority are getting their just deserts, as Colbert uses his Super PAC to attack a decision that contributed to the creation of Super PACs.

 

But there’s a problem with Lithwick’s narrative:  Virtually everything Stephen Colbert is doing was legal before Citizens United.

 

Although Colbert has often used the phrase “unlimited corporate money” in reference to his Super PAC, last Tuesday’s disclosures paint a very different picture.  Colbert’s PAC, which raised more than $825,000 through the end of the year, has raised almost no corporate money.  Indeed, the only two corporate donations he reported to the Federal Election Commission amount to $714, total.  In addition to barely raising any corporate money, Colbert’s Super PAC accepted only one contribution from an individual (of $9,600) in excess of the $5,000 limit that applies to regular PACs.

 

In other words, more than 99% of the money Colbert has raised to mock Citizens United and Super PACs is money that has been legal under the campaign finance laws for decades.

 

So what are the real lessons to be learned from Colbert’s surprisingly un-Super PAC?

 

Perhaps the most obvious is that campaign finance laws are rarely a hindrance for people with television shows espousing political messages that are already popular.  Those people already have the ability to get their message out to a national audience.  Political upstarts or outsiders—the real beneficiaries of the rulings in Citizens United and SpeechNow.org v. FEC—don’t have that option.

 

But another lesson—or perhaps more of a sad reminder—is that free speech will never want for critics.  There will always be those who use their free speech rights to advocate that others’ be restricted.  And it is surely their right to do so.  But such people aren’t—as Colbert and Lithwick seem to believe—cleverly using the tools of the Machine to attack the Machine.  They’re simply advocating censorship for speech they disagree with, and weakening the basis of their own rights in the process.

 

Image source: MHimmelrich

Last Tuesday, many so-called “Super PACs” for the first time disclosed their donors to the Federal Election Commission. But as proponents of campaign finance laws savor this newly released data—and whinge over how long it took for them to get it—here’s one thing you won’t hear them admit: We would have had this information weeks ago if our campaign finance laws were less strict.

 

Surprised? Don’t be. It’s just the latest example of the unintended consequences of the reform lobby’s zeal for ever-greater regulation of political speech. To understand how it happened, it helps to know a bit about the history of Super PACs.

 

Although the media commonly associates Super PACs with the U.S. Supreme Court's decision in Citizens United v. FEC, that decision is only indirectly related to the rise of Super PACs. Citizens United freed corporations and unions to spend on their own. But even after that decision, individuals and groups were still limited in their ability to pool money to spend on political speech.

 

It wasn’t until the D.C. Circuit Court of Appeals decided a case called SpeechNow.org v. FEC that individuals and groups were permitted to pool money in unlimited amounts to spend on political speech. As the D.C. Circuit recognized in that case, if a wealthy individual or a corporation acting alone is permitted to spend an unlimited amount on political speech, it makes no sense to limit the amount that individuals and other groups can pool together to spend on political speech.

 

But the D.C. Circuit also did something else: It held that groups that pool money to spend on independent political speech may be required to speak through heavily regulated political committees (or PACs). Reformers cheered this portion of the ruling because PACs are the most heavily regulated groups under federal campaign finance law. The Campaign Legal Center—the pro-regulation group run by Stephen Colbert’s personal lawyer, Trevor Potter—called it “a victory for disclosure.”

 

It turns out to have been a Pyrrhic victory.

 

The reform lobby ignored the fact that PACs, while heavily regulated, disclose their donors on a preset schedule. The plaintiffs in the SpeechNow.org case had argued that they should be subject to the less stringent regulations that apply to groups other than PACs. Those groups, however, are required to disclose their donors within 48 hours of spending $10,000 or more on political ads (and within 24 hours if it’s less than 20 days before a primary or general election).

 

In other words, we could have known all along who was giving to Super PACs if the reform lobby and the Federal Election Commission, driven by a mantra that “more regulation is always better,” hadn’t turned their noses up at the offer.

 

None of this is to endorse the idea that contributions to Super PACs should necessarily be disclosed. The First Amendment protects the right to engage in anonymous speech, and people who get together to engage in independent political speech should, ideally, be allowed disclose as much or as little about their donors’ identities as they like. But it’s a great example of how the reform lobby’s tactics invariably focus, first, on making it difficult to put spend money on political speech, with all other considerations being secondary.

 

In light of this, there are good reasons to be skeptical of their efforts to revive last year’s failed DISCLOSE Act, which would impose extensive new disclosure requirements on Super PACs and nonprofit organizations. For the reform lobby, the fact that some groups might stop speaking rather than comply with these new burdens is a feature, not a bug.

Professor Jeffrey Rosen has written an attack on Citizens United v. FEC that attempts to transform the progressive complaints against the case into the main reason for the loss of “Americans’ confidence in their political system.” Rosen presents no evidence for this assertion, of course, perhaps because none exists. The Pew Charitable Trust’s recent poll of public priorities concluded—even after almost-hourly criticisms of Super PACs in the media and on the campaign trail and the focus on Citizens United allegedly resulting from the Occupy Wall Street protest—that campaign finance “remains on the back burner for most Americans” and is one of the lowest ranked issues across party lines. This has changed little from previous years. It is difficult to imagine how something that is “on the back burner for most Americans” has caused Americans to become so disillusioned.

 

Nonetheless, Professor Rosen sees signs of a “backlash” and faults the U.S. Supreme Court for failing to foresee this inevitable result. Rosen’s evidence of this “backlash” is weak: He cites the Move to Amend effort to “Occupy the Supreme Court,” an effort most notable for its utter failure to cause people to notice that it was occurring. He also cites a single decision of the Montana Supreme Court rejecting Citizens United as proof of a “judicial backlash.” But the Montana decision is unique. No other court has so blatantly rejected on-point Supreme Court precedent and a check of Lexis-Nexis reveals that Citizens United has been routinely followed, cited, and relied upon by dozens of federal and state courts across the country.

 

Professor Rosen attributes the Court’s failure to predict this “backlash” to the fact that none of the Justices were politicians before coming to the Court. Rosen implies that, had some of the Justices been in politics prior to becoming justices, they would have understood how Citizens United would be received and, presumably, voted to uphold the law at issue in the case. He celebrates Justices like Warren, Douglas and Black, among others, who had political experience before coming to the Court.

 

Professor Rosen may have forgotten that Citizens United was not the first time Congress’s ban on political expenditures by corporations and unions had come before the Court. The Court had previously considered the ban twice and sidestepped the constitutional issue both times. In 1958, in U.S. v. International Union United Automobile, Aircraft and Agricultural Implement Workers of America, three justices dissented. These three justices would have reached the constitutional issue and struck the law down. These three justices were Warren, Douglas and Black. In the dissent, Justice Douglas called the law “a broadside assault on the freedom of political expression guaranteed by the First Amendment.” He wrote:

 

Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group—labor or corporate. First Amendment rights are part of the heritage of all persons and groups in this country. They are not to be dispensed or withheld merely because we or the Congress thinks the person or group is worthy or unworthy.

 

Similarly, when the Court considered the law in 1948, four Justices dissented in the case. These Justices would have also reached the constitutional question and struck the law down. Although Justice Rutledge, a former academic and judge, wrote the dissent, he was joined by Justices Black, Douglas and Murphy. In case one is unfamiliar with the career of Justice Murphy, who died when he was just 59, he was a former U.S. Attorney General, Governor of Michigan, Mayor of Detroit, and Governor-General of the Philippines. Justice Rutledge’s dissent noted:

 

A statute which, in the claimed interest of free and honest elections, curtails the very freedoms that make possible exercise of the franchise by an informed and thinking electorate, and does this by indiscriminate blanketing of every expenditure made in connection with an election, serving as a prior restraint upon expression not in fact forbidden as well as upon what is, cannot be squared with the First Amendment.

 

Perhaps these politicians understood something that Professor Rosen does not: that a constitutional command that “Congress shall make no law . . . abridging the freedom of speech” means that Congress cannot constitutionally make a law abridging freedom of speech, regardless of “the serious political implications [the Court] could create” in coming to that conclusion. Ultimately, that is the role of the courts in constitutional cases—to uphold constitutional principles even in the face of public opposition, real or, in this case, mostly imagined. Indeed, this is exactly when judicial adherence to principle is most needed. Otherwise, the First Amendment, and the rest of our Constitution, becomes nothing but words on paper. Justices Warren, Douglas and Black understood this well, as did the justices in the majority in Citizens United.

Tomorrow is the second anniversary of the U.S. Supreme Court’s landmark ruling in Citizens United v. FEC.  To mark the occasion, the Institute for Justice has released public statements defending that ruling and defending the rise of so-called “Super PACs” as a means for people to pool their resources to speak out about political candidates:

 

Citizens United, Two Years Later: Institute for Justice Continues to Defend Landmark Free Speech Ruling

 

Institute for Justice Defends Super PACs

 

Speaking of Super PACs, John Samples of the Cato Institute was kind enough to write a blog post reminding people of the role the Institute for Justice played in their creation. Check out his post—SpeechNow, the Decision that Made a Difference—at the Cato@Liberty blog.