[EL] Quick Question on Super PACs/Briffault

[Marty Lederman]

Thanks, Rick, but I think I'm still missing the key point.  Those decisions opened the way for unlimited contributions to 527's--they removed the cloud reflected in the Bauer phone incident.  And *that* was a big deal, to be sure.  But then what is so important about the subsequent emergence of SuperPACs, in addition to 527's?  

Sent from my iPhone

On Jun 4, 2012, at 9:27 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

> I address this question in this Slate piece:
> 
> 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 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) 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 of this theory about corruption, 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....
> 
>  Let’s focus only on presidential election years, to keep the comparisons as simple as possible. In the 1992 election season, when it was entirely possible (under that 1976 Supreme Court decision) for Sheldon Adelson or George Soros to spend unlimited sums independently on elections, total outside spending up to March 8 was about $1.5 million. In 2000, total outside spending up to March 8 was $2.6 million. In 2004 and 2008, with the explosion of 527 organizations, total spending to March 8 was $14 million and $37.5 million. What is the total for this election season through March 8?  More than $88 million, 234 percent of 2008's numbers and 628 percent of 2004's.* If this was not caused by Citizens United, we have a mighty big coincidence on our hands.
> And, of course, this is only the total leading up to March 8, midway through the Republican primary. Wait until the super PACs and other organizations start raising their unlimited sums for the general election. Further, lots of groups are now using 501(c) organizations rather than super PACs for their campaign spending, in an effort to hide their donors. A Center for Responsive Politics study found that in 2010 the percentage of “spending coming from groups that did not disclose their donors rose from 1 percent to 47 percent since the 2006 midterm elections,” and “501(c) non-profit spending increased from 0 percent of total spending by outside groups in 2006 to 42 percent in 2010.” The same report found that 72 percent “of political advertising spending by outside groups in 2010 came from sources that were prohibited from spending money in 2006.”
> 
> 
> 
> 
> On 6/4/12 5:55 AM, Marty Lederman wrote:
>> 
>> Have been out of the loop on such questions for a while and was quickly perusing Richard Briffault's article on "Super PACs," i.e., "independent expenditure only" PACs, to see what all the fuss was about -- in particular, what the difference is between 527s and Super PACs.  If I understand Richard correctly, the principal difference appears to be that Super PACs can engage in express advocacy.
>> 
>> Is that correct?  If so, why has it been an important development?  After all, hadn't it long been the case that no one cared much about "magic words," and that there was no evidence they had any greater impact than non-express-advocacy?  (Why many of us thought WRtL, not Citizens United, was the landmark case.)
>> 
>> Is that the major Super PAC development -- that all-of-a-sudden       individuals are making unlimited contributions to PACs that engage in express advocacy?  (I haven't seen a lot of "Vote for" ads lately -- but then again, it's early and I don't live in a battleground state.)  If so, is there really a huge demand for such advocacy, and is the resulting effect of such Super PACs materially different from the effect of 527s?
>> 
>> Thanks in advance for any clarification.
> 
> -- 
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
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