[EL] Fortune 500 election-related contributions (or "You Can't Go Home Again")

[Ellen Aprill]

For what it is worth, the U.S. Chamber of Commerce, which is on a calendar
year, reported spending $39,537,433
 on political campaign intervention for its 2010 on Schedule C of its Form
990 and $23,175,622 for 2008.  My academic
premium Guidestar subscription has expired (and it will take a couple of
days to process my new application), so I
cannot give you the 2006 numbers right now.

  Ellen
-------
Ellen P. Aprill
John E. Anderson Professor of Tax Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015
213-736-1157



On Mon, Jul 9, 2012 at 2:25 PM, Beckel, Michael <mbeckel at publicintegrity.org
> wrote:

> Agreed. It would be interesting to see what focus groups said about the
> paid for by line!****
>
> ** **
>
> I know I’m a little late to this discussion, but I also wanted to throw
> out a couple pieces of data.****
>
> ** **
>
> Trevor asked how much 501c6s had reported spending to the FEC. In a joint
> analysis that the Center for Public Integrity and the Center for Responsive
> Politics published last month<http://www.opensecrets.org/news/2012/06/nonprofits-outspent-super-pacs-in-2.html>,
> we showed that 501c6s had reported spending about $46 million during the
> 2010 election cycle – and as of mid-June, 501c6s had reported spending
> about $3.5 million. ****
>
> ** **
>
> Of course, if issue ads that mention candidates run outside of the
> “electioneering communication” window of 30 days prior to a primary and 60
> days prior to the general election, they are not reported to the FEC (and
> are not accounted for in the analysis).****
>
> ** **
>
> As we reported<http://www.iwatchnews.org/2012/06/18/9147/nonprofits-outspent-super-pacs-2010-trend-may-continue>,
> Crossroads GPS spent about $44 million on ads between the start of 2011 and
> mid-June, but has only reported just over $200,000 to the FEC this cycle,
> because the bulk of the ads did not air within the EC windows.****
>
> ** **
>
> Also, for what it’s worth, I think Rick’s screenshots from the CRP’s
> website showed “cycle-to-date” spending, not spending for the full cycle.
> ****
>
> ** **
>
> As you can see below (and online here<http://www.opensecrets.org/outsidespending/cycle_tots.php?cycle=2012&view=A&chart=N#viewpt>),
> there was more than $119 million spent on electioneering communications in
> 2008, with 501c nonprofits accounting for the vast majority of that — and
> in the wake of *WRTL*, the U.S. Chamber of Commerce in particular
> accounting for about $16.5 million of that sum, according to the Center
> for Responsive Politics<http://www.opensecrets.org/outsidespending/summ.php?cycle=2008&chrt=V&disp=O&type=A>
> .****
>
> ** **
>
> ****
>
> ** **
>
> Sincerely,****
>
> Michael Beckel****
>
> Center for Public Integrity****
>
> ** **
>
> ** **
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Rick Hasen
> *Sent:* Monday, July 09, 2012 5:14 PM
> *To:* Kelner, Robert
> *Cc:* 'law-election at uci.edu'
> *Subject:* Re: [EL] Fortune 500 election-related contributions (or "You
> Can't Go Home Again")****
>
> ** **
>
> Still, I wonder how voters would react to ads that say "Paid for by
> Sheldon Adelson" rather than "Paid for by Restore Our Future."
> It would be an interesting question for focus groups.****
>
> On 7/9/2012 2:09 PM, Kelner, Robert wrote:****
>
> Though I had promised to desist, and let the academics have at it, there
> is one point in Rick's post below that I can't resist highlighting. Rick
> correctly notes that even before CU, wealthy individuals could spend
> unlimited funds to air express advocacy ads for or against a candidate.
> What stopped them from doing so was not the campaign finance laws but
> either (a) ignorance that they could do so lawfully, or (b) the FCC's
> requirement that the ad say "Paid for By (insert name of the wealthy
> individual)."
>
> The one thing that I think CU did change fundamentally and forever,
> however, is the cultural norm around wealthy individuals publicly putting
> their money where their mouths are. I strongly suspect that if CU were
> overturned (on any grounds that left Buckley intact), we would still see
> Sheldon Adelson and others like him buying campaign ads supporting their
> favored candidates, regardless of the Paid for By tag line. The post-CU
> blossoming of political speech showed that individuals can publicly spend
> large sums on political speech and live to tell about it -- without the
> stigma or consequences some major donors once feared would ensue. That
> cultural shift in the campaign finance system is here to stay, with or
> without CU. You can't go home again.
>  ****
>
> *From*: Rick Hasen [mailto:rhasen at law.uci.edu <rhasen at law.uci.edu>]
> *Sent*: Monday, July 09, 2012 03:07 PM
> *To*: Marty Lederman <lederman.marty at gmail.com> <lederman.marty at gmail.com>
> *Cc*: Kelner, Robert; law-election at uci.edu <law-election at uci.edu><law-election at uci.edu>
> *Subject*: Re: [EL] Fortune 500 election-related contributions
>  ****
>
> If a corporation gave money to a c4, and that c4 (or 527) had the major
> purpose of influencing federal elections (and therefore should have
> registered as a political committee), then the contribution to the c4 (or
> 527) would be an illegal corporate contribution to a PAC.  So it was
> fraught with legal uncertainty.
>
> As I point out here<http://www.slate.com/articles/news_and_politics/politics/2012/03/the_supreme_court_s_citizens_united_decision_has_led_to_an_explosion_of_campaign_spending_.html>,
> the same was true of individual contributions above $5,000 to 527s before
> the CU blessing:  ****
>
> It is true that before *Citizens United* people could spend unlimited
> sums on independent advertising directly supporting or opposing
> candidates. But that money had to be spent by the individual directly. It
> could not be given to a political action committee, which had an individual
> contribution cap of $5,000 and could not take corporate or union
> funding. In many cases, wealthy individuals did not want to spend their own
> money on advertising, which would say “Paid for by Sheldon Adelson” or
> “Paid for by George Soros,” so fewer of these ads were made. The only way
> to avoid having your name plastered across every ad was to give to the
> 527s, which claimed they could take unlimited money from individuals
> (including, sometimes, corporate and labor union money) on grounds that
> they were not PACs under the FEC’s definition of PACs. These organizations
> were somewhat successful, but a legal cloud always hung over them. During
> the 2008 Democratic primary season, Bob Bauer, candidate Obama’s lawyer, barged
> in on a pro-Hillary Clinton conference call<http://electionlawblog.org/archives/010292.html>to say that people giving to 527s to support Clinton could face criminal
> liability.
>
> After *Citizens United*, the courts (most importantly in *Speechnow.org
> v. FEC<http://scholar.google.com/scholar_case?case=7706190082269594272&hl=en&as_sdt=2&as_vis=1&oi=scholarr>
> *) and the FEC provided a green light for super PACs to collect unlimited
> sums from individuals, labor unions, and corporations for unlimited
> independent spending. The theory was that, per *Citizens United*, if
> independent spending cannot corrupt, then contributions to fund independent
> spending cannot corrupt either. (I am quite critical<http://www.cnn.com/2012/01/09/opinion/hasen-super-pacs/index.html?eref=rss_topstories&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A%20rss%2Fcnn_topstories%20%28RSS%3A%20Top%20Stories%29>of this theory about
> corruption<http://www.slate.com/articles/news_and_politics/politics/2012/02/justice_ruth_bader_ginsburg_is_ready_to_speak_out_on_the_danger_of_super_pacs_.html>,
> but that’s besides the point here.) So what was once of questionable
> legality before the court’s decision was fully blessed after *Citizens
> United*.****
>
> ** **
>
> On 7/9/2012 12:01 PM, Marty Lederman wrote:****
>
> I see.  I think.  Is this right?:  Because WRtL was nominally only a
> statutory construction decision, then in the period between WRtL and CU, if
> a corporation wanted to spend treasury funds for *non-*express advocacy
> -- the only kind of advocacy anyone actually wants to use these days -- it
> could freely do so in its own name, or by funding a (c)(4) not registered
> with the FEC.  But it could not, pre-CU, achieve the same thing by funding
> an FEC-registered committee (which it might prefer to do . . . why?  less
> disclosure than w/r/t committees that are not FEC-registered?).
>
> If this is correct -- and please forgive me if I still have it wrong --
> then the "floodgate" CU opened, over and above what was permitted by WRTL,
> was to allow treasury funds to be used to fund *FEC-registered* PACs.
> And this, in turn, dramatically increased the amount of such funds that
> were expended -- presumably because corporations were reluctant to fund ads
> when only the first two options were available post-WRtL.  If that's the
> case, why was the addition of this third option such a sea-change?
>
>  ****
>
> On Mon, Jul 9, 2012 at 2:49 PM, Rick Hasen <rhasen at law.uci.edu> wrote:****
>
> If I understand correctly, everything done by a Super PAC (and other
> political committees registered with the FEC) counts as an IE.  When done
> by a c4 and other outside groups not registered with the FEC, it is not an
> IE without express advocacy. ****
>
> ** **
>
> On 7/9/2012 11:46 AM, Marty Lederman wrote:****
>
> Whoa!  If I'm reading those charts correctly (and I might not be), the
> vast majority of such spending has been on independent expenditures, not
> electioneering communications!  And yet in all this time, I don't think
> I've seen a *single *ad that uses the magic words, i.e., that could not
> have been characterized as an electioneering communication subject to
> WRtL.  Is this simply a matter of self-chosen nomenclature, i.e., calling
> ECs "independent expenditures" (perhaps for disclosure reasons)?  Or have I
> simply missed a huge outpouring of "magic words" ads that corporations and
> unions were just chomping at the bit to subsidize with treasury funds, even
> post-WRtL, that have now been unleashed by virtue of CU?****
>
> On Mon, Jul 9, 2012 at 2:14 PM, Rick Hasen <rhasen at law.uci.edu> wrote:****
>
> There was an uptick even before the change in the disclosure rules from
> van Hollen.  Here's a chart from CRP data of outside spending on IEs over
> time:
>
>
>
>
> Now here's the same chart, adding ECs on top of the IEs in the translucent
> color---very little additional:
>
> ****
>
> ** **
>
> On 7/9/2012 11:09 AM, Marty Lederman wrote:****
>
> Thanks, Rick.  My assumption, however, is that all or virtually all of the
> spending in question has *not* been used for advertising in the form of
> "magic words."  Accordingly, that spending could have been used after WRtL,
> even if CU had come out the other way, right?  And if I understand your
> post correctly, to the extent there has been an uptick in "magic words"
> independent expenditures, it might well be because they are subject to
> lesser disclosure rules than ECs, and not to CU.
>
> Is this correct?****
>
> On Mon, Jul 9, 2012 at 1:59 PM, Rick Hasen <rhasen at law.uci.edu> wrote:****
>
> I think the answer to this is complicated by the fact that there is now a
> fuller disclosure regime for electioneering communications than for
> independent expenditures (an ironic result of the van Hollen decision).
> But given the close timing of the two cases I don't think there's any way
> to tease out what kind of spending WRTL II would have unleashed without
> CU.  You can see from the chart I sent around earlier that ECs were way up
> in 2008 compared to 2004 (that is, in the period between WRTL and CU) but
> that ECs/IEs are way up over 2008 as well. ****
>
> ** **
>
> On 7/9/2012 10:55 AM, Marty Lederman wrote:****
>
> If I may repeat a question I've asked before (to which I have yet to see
> any answer -- perhaps I'm the only one who's interested!):
>
> To the extent spending has materially increased or changed in nature in
> these past two or so election cycles, how much of the change can be chalked
> up to Wisconsin Right to Life rather than to CU?
>
> That is to say:  Is an appreciable amount of the spending about which
> you're all debating being expended for "magic words" advertising, or could
> all or almost all of it have been spent after WRtL, even if CU had come out
> the other way?
>
> Thanks in advance.
>
> ****
>
> ** **
>
> ** **
>
> -- ****
>
> Rick Hasen****
>
> Chancellor's Professor of Law and Political Science****
>
> UC Irvine School of Law****
>
> 401 E. Peltason Dr., Suite 1000****
>
> Irvine, CA 92697-8000****
>
> 949.824.3072 - office****
>
> 949.824.0495 - fax****
>
> rhasen at law.uci.edu****
>
> http://law.uci.edu/faculty/page1_r_hasen.html****
>
> http://electionlawblog.org****
>
> Pre-order The Voting Wars: http://amzn.to/y22ZTv****
>
> www.thevotingwars.com****
>
> ** **
>
> ** **
>
>
>
> ****
>
> -- ****
>
> Rick Hasen****
>
> Chancellor's Professor of Law and Political Science****
>
> UC Irvine School of Law****
>
> 401 E. Peltason Dr., Suite 1000****
>
> Irvine, CA 92697-8000****
>
> 949.824.3072 - office****
>
> 949.824.0495 - fax****
>
> rhasen at law.uci.edu****
>
> http://law.uci.edu/faculty/page1_r_hasen.html****
>
> http://electionlawblog.org****
>
> Pre-order The Voting Wars: http://amzn.to/y22ZTv****
>
> www.thevotingwars.com****
>
> ** **
>
>
>
> ****
>
> -- ****
>
> Rick Hasen****
>
> Chancellor's Professor of Law and Political Science****
>
> UC Irvine School of Law****
>
> 401 E. Peltason Dr., Suite 1000****
>
> Irvine, CA 92697-8000****
>
> 949.824.3072 - office****
>
> 949.824.0495 - fax****
>
> rhasen at law.uci.edu****
>
> http://law.uci.edu/faculty/page1_r_hasen.html****
>
> http://electionlawblog.org****
>
> Pre-order The Voting Wars: http://amzn.to/y22ZTv****
>
> www.thevotingwars.com****
>
> ** **
>
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>
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