[EL] What Rick misses about what Bai doesn't miss

[Roy Schotland]

W/o disagreeing with Rick on points he makes, there's a good case for
saying that Bai adds value on a bigger point;  Citizens United, with all
that's awful about it, is not the source of all the current horrors.
Yes a $100 million donor woulda gotten serious hassle, but the
big-enough donors are giving real hassle as they did before.  CU ain't
Dred Scott, as has been claimed-- as Justin Levitt put it perfectly, the
reaction to Citizens United has been "disproportionately rabid[,] . . .
over-overwrought."   (To same effect, see Adam Liptak's superb piece in
Columbia Law alumni mag, quoting many Columbia Law profs, A Drop in the
Bucket, COLUM. L. SCH. MAG., 8/31/10.) 

            Right after CU came down, one of our savviest campaign
finance gurus said  "it makes 'the ask' so much easier."  Isn't that the
key to the explosion in funds?

            Much of our current horrors stems from my party's 2009 House
failure, with a bill that falsely claimed to aim at disclosure but
suffered so many sins: partisan provisions that made it impossible for
any Republican, even from Maine, to come aboard; lunatic exemptions as
for NRA, in contrast to overburdensome requirements on small entities;
loads of loopholes; et al.  CU couldn't have been more pro-disclosure
than it was, but we've failed -not only in Congress but inexcusably in
the state and local governments that srill believe what, until recently,
was bipartisan gospel:  in a democracy voters must be informed, so
effective disclosure is crucial. 

 

Roy A. Schotland

Professor Emeritus

Georgetown Law Center

600 New Jersey Ave. N.W.

Washington, D.C. 20001

202/662-9098

        fax: -9680


What Matt Bai's Missing in His Analysis of Whether Citizens United is
Responsible for the Big Money Explosion
<http://electionlawblog.org/?p=37108>  


Posted on July 18, 2012 10:41 am <http://electionlawblog.org/?p=37108>
by Rick Hasen <http://electionlawblog.org/?author=3>  

The other day I linked <http://electionlawblog.org/?p=37057>  to Matt
Bai's iece upcoming in Sunday's NY Times Magazine
<http://www.nytimes.com/2012/07/22/magazine/how-much-has-citizens-united
-changed-the-political-game.html?_r=1&pagewanted=all> , "How Much Has
Citizens United Changed the Political Game. The article discusses
(though inexplicably does not link to) my recent Slate article
<http://www.slate.com/articles/news_and_politics/politics/2012/03/the_su
preme_court_s_citizens_united_decision_has_led_to_an_explosion_of_campai
gn_spending_.html> , "The Numbers Don't Lie."   I promised a response to
the article (I gave Matt an extensive interview in his writing of the
piece), and here it is.

The relevant question is whether Citizens United and its aftermath
(namely, the decision in SpeechNow from the DC Circuit, and two FEC
rulings) is responsible for the explosion of outside money since
Citizens United.  Here's Matt's reaction to my Slate piece claiming that
it is responsible:

	Richard L. Hasen, an expert on campaign finance at the
University of California at Irvine, recently wrote an article for Slate
titled, "The Numbers Don't Lie," in which he showed that total outside
spending, as measured through March 8 of every election season, seemed
to explode after the Citizens United decision, reaching about $15.9
million in 2010 (compared with $1.8 million in the previous midterm
cycle) and $88 million this year (compared with $37.5 million at the
same point in 2008). "If this was not caused by Citizens United," he
wrote, "we have a mighty big coincidence on our hands."

	But there are alternate ways to interpret this data. The level
of outside money increased 164 percent from 2004 to 2008. Then it rose
135 percent from 2008 to 2012. In other words, while the sheer amount of
dollars seems considerably more ominous after Citizens United, the
percentage of change from one presidential election to the next has
remained pretty consistent since the passage of McCain-Feingold. And
this suggests that the rising amount of outside money was probably bound
to reach ever more staggering levels with or without Citizens United.
The unintended consequence of McCain-Feingold was to begin a gradual
migration of political might from inside the party structure to outside
it.

	And in his examination of raw numbers, Hasen managed to ignore
what is probably the most relevant bit of data during this period: 2010
and 2012 were the first election cycles since the enactment of
McCain-Feingold in which a Democrat occupied the White House. Rich
conservatives weren't inspired to invest their fortunes in 2004, when
Bush ran for the second time while waging an unpopular war, or in 2008,
when they were forced to endure the nomination of McCain. But now
there's a president and a legislative agenda they bitterly despise (much
as Soros and his friends saw the Bush presidency as an existential
threat to the country), so it's not surprising that outside spending by
Republicans in 2010 and 2012 would dwarf everything that came before.
What we are seeing - what we almost certainly would have seen even
without the court's ruling in Citizens United - is the full force of
conservative wealth in America, mobilized by a common enemy for the
first time since the fall of party monopolies.

A few reactions, beginning with the most important.

1. As I told Matt, and what's missing from this piece, is the
realization that there was considerable legal risk in giving to a 527
before Citizens United and its aftermath. As one reader to commented to
me, "Matt's article suggests that not much has changed post-Citizens
United because even prior to the CU decision, "you would have been free
to write a check for any amount to a 527 . . . ."  This is untrue and
all three groups Matt cites were determined by the FEC to have violated
federal law during the 2004 cycle.  ACT paid a $775,000 fine
(http://www.fec.gov/press/press2007/20070829act.shtml).  SwiftVets paid
a $299,500 fine (http://www.fec.gov/press/press2006/20061213murs.html).
Club for Growth paid a $350,000 fine
(http://www.fec.gov/press/press2007/20070905cfg.shtml)."

If Sheldon Adelson really was planning on giving $100 million
<http://www.usnews.com/news/articles/2012/06/14/sheldon-adelson-willing-
to-spend-100-million-to-beat-obama>  to 527s before the Citizens United
revolution to support a presidential candidate, you can bet that there
would be a criminal investigation and very serious charges considered. i
have serious doubts Adelson or anyone else would have risked this (much
less corporations giving considerable sums to 501c4s for
election-related activity).  Now we can debate (and I have debated with
others) whether the law barring contributions greater than $5,000 to
independent expenditure committees would have fallen even if CU had come
out the other way.  But that's a different point than the one Matt was
making.

There's no reason to think we'd see this explosion of outside money if
CU did not start this cascade of events.

2. Matt seems to suggest that the amounts were rising pretty evenly
since McCain-Feingold passed. Bu that's what the data show.  As Paul
Blumenthal explains
<http://www.huffingtonpost.com/2012/07/17/huffpost-fundrace----sena_n_16
80957.html> : "The problem with Bai's argument is he glosses over the
2006 election, which saw both no soft money to parties and little
independent group spending. The rise in outside spending in 2008 back to
2004 levels came after the Supreme Court's ruling in Wisconsin Right to
Life v. Federal Election Commission (FEC) loosened McCain-Feingold
restrictions on independent spending and a subsequent FEC rule created a
loophole for groups to avoid disclosure. The real culprit would be the
change in the Court's tentatively pro-reform majority with Sandra Day
O'Connor's departure."  That's right.  Justice Alito changed everything,
and the move toward loosening things up started with WRTL, as Nate
Persily explained,
<http://www.slate.com/articles/news_and_politics/jurisprudence/2010/01/t
he_floodgates_were_already_open.html>  and accelerated dramatically with
CU.  But we can blame the Court and not McCain-Feingold for the
explosion of outside money.

3. Finally, as far as Matt's point that I "managed to ignore" the
presence of a Democrat in the White House-that's not quite right.  We
have a highly polarized electorate and we can expect every presidential
election for the foreseeable future to be closely fought and very well
funded.  I see no reason to believe that wealthy Republicans would
provide less money in the 2016 election (assuming Obama wins 2012) to
fill the presidency with a non-incumbent or (assuming Romney wins) to
keep Romney in office against a Democratic challenger.  Where's Matt's
evidence to support that claim?

In the end, Matt tells a (less) plausible alternative story of the rise
of outside money, which we will be able to test by the next presidential
election (where I take it his theory would have less outside money in
that election).  I eagerly await the results of 2016 election. In the
meantime, I see nothing in this analysis to convince me that we'd be
facing this explosion in 2012 if we had the same rules in place in 2008.
Matt's biggest error is ignoring the effects of the law on political
behavior.

 

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