[EL] Quick Question on Super PACs/Briffault

Mon Jun 4 07:03:24 PDT 2012

I think now we have a possible confusion of nomenclature.  If I'm reading
the Briffault piece correctly, Richard is *distinguishing* between 527's
without funding restrictions, on the one hand, and "Super PACs," on the
other, in that the latter, but not the former, can engage in express
advocacy.  Steve appears to be calling both animals "Super PACs."  But
Richard (if I understand him correctly) is saying that the emergence of
what *he* calls* *Super PACs is a very big deal, separate and apart from
the case law inviting 527s without restrictions.

That's where I'm confused, because I had thought there wasn't much of a
market for express advocacy any more.

Here's an analogy:  Way back when I used to be on this listserv, most of us
thought that, as a practical matter, WRtL had caused 99% of the mischief
(or solved 99% of the problem, depending on one's perspective), because it
effectively allowed corporations to use treasury funds for everything
except express advocacy -- and no one wanted to engage in express advocacy,
anyway.  Citizens United was very important doctrinally, historically, and
symbolically; but WRtL had already effectively undermined Austin.

Did that turn out to be correct?  Or did CU actually unleash a ton of
treasury-funded express advocacy?  Likewise, does the emergence of Super
PACs *in addition to *527s without funding restrictions change anything in
a material way?

In other words, both of these hypos -- WRtL/CU and 527s/Super PACs -- raise
the question of whether the "magic words" limitation is actually important,
and if it has any practical effect on the nature of political spending, and
on elections.

On Mon, Jun 4, 2012 at 9:48 AM, Steve Hoersting <hoersting at gmail.com> wrote:

> Here is a good way to think about the nomenclature:
>
> In 2003, we had "527s," an IRS term used to distinguish them from what no
> FEC regulator could (yet) turn into "political committees."  That's why the
> 527 label was used overwhelmingly during that time: political committee was
> not what these groups were.
>
> With the 2004 Rulemaking, what everyone used to call a "527" they could
> now call a "political committee."
>
> But the restrictions were too tight.  So the theory was challenged.  The
> newly minted 527-political committee went to court.  What happened is that
> those lawyers, and I was one of several, were *good* at arguing against
> the funding restrictions and not so good at arguing against the political
> committee construct as a whole (on the grounds no organization should be
> compelled to register as a political committee (2 USC 434(a)) if it posed
> no threat of corruption.  Rather, it should disclose when and as it speaks2
> USC 434(c)).  The court lifted the funding restrictions and kept the PAC
> registration restrictions in place.
>
> So, what do we have now?  No funding restrictions *inside* a political
> committee construct.  A good name for this turned out to be: Super funding
> + restrictions of political-action-committee registration = "Super PACs."
>
> Steve
>
> On Mon, Jun 4, 2012 at 9:33 AM, Marty Lederman <lederman.marty at gmail.com>wrote:
>
>> 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:<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>
>>
>> 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 *<http://scholar.google.com/scholar_case?case=7706190082269594272&hl=en&as_sdt=2&as_vis=1&oi=scholarr>
>> 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<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*....
>>
>>  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.*<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#correction>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<http://www.opensecrets.org/news/2011/05/citizens-united-decision-profoundly-affects-political-landscape.html>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
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000
>> 949.824.3072 - office
>> 949.824.0495 - fax
>>  <rhasen at law.uci.edu>rhasen at law.uci.edu
>>  <http://law.uci.edu/faculty/page1_r_hasen.html>
>> http://law.uci.edu/faculty/page1_r_hasen.html
>>  <http://electionlawblog.org>http://electionlawblog.org
>> Pre-order *The Voting Wars*: <http://amzn.to/y22ZTv>http://amzn.to/y22ZTv
>>
>>
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>
>
>
> --
> Stephen M. Hoersting
>
>
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