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

[Marty Lederman]

There's more substantive common ground here, methinks, than this debate
suggests.  I think we all agree that things are much, much different, both
in terms of corporate spending and contributions, and in terms of wealthy
individuals' spending and contributions, as between the 2006 cycle and
today.

Matt Bai's principal point, which reflects something Roy and I and others
(Nate P., et al.) have suggested, is that CU is the least of it:  WRtL,
Speech Now, the FEC rulings, etc., are much more practical significance in
many respects -- they are much more the cause of the $$ explosion -- than
CU itself.

But Rick is fundamentally correct:  if that's all Matt was trying to say,
it's a trivial, formalist distinction:  "Citizens United" has become the
rallying cry, for obvious reasons, because there the Court more
*expressly*rejected 60 years of practice; expressly overruled Austin
and McConnell
(which had already been decimated by WRtL); argued that expenditures don't
lead to corruption; and provocatively suggested that the constitutional
limits on regulating persons apply just as robustly to corporations, a
notion that (like "expenditures don't corrupt") understandably struck the
public as deeply counterintuitive and deeply troubling.  Moreover, the
Court in CU signaled much more clearly than it ever had before that there
were five Justice deeply hostile to all manner of campaign finance
regulation (save perhaps disclosure requirements).

And so, for these and other reasons, the catchphrase "Citizens United" has
come to stand in for the whole, very convulsive change in campaign finance
law that has been brewing and inevitable since the summer of 2005, when
Justice Alito replaced Justice O'Connor.  I argued, both in 2005 and later,
that of the many changes that were likely to occur as a result of that
appointment, the fundamental shift in campaign finance law was among the
"Big Five," and, along with the inevitable evolution in Establishment
Clause doctrine, would be the most significant and possibly the most
long-lasting.  See, e.g.,
http://michaeldorf.org/2007/06/difference-alito-makes.html#c7064802966676940884
.

I imagine everyone on this list, whether they think the Alito-for-SOC
switch was a good or a bad change, would basically agree with this -- as
would Matt Bai.  And if his main point is that simply "overruling" CU would
not undo most of the change over the past six years, I think we'd all agree
with that, too.


On Thu, Jul 19, 2012 at 12:24 PM, Roy Schotland <schotlan at law.georgetown.edu
> wrote:

> 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_supreme_court_s_citizens_united_decision_has_led_to_an_explosion_of_campaign_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_1680957.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/the_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.***
> *
>
>  ****
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120719/ab53192d/attachment.html>