[EL] Quick Question on Super PACs/Briffault

Mon Jun 4 07:17:47 PDT 2012

Marty writes: "Steve appears to be calling both animals "Super PACs.""

No. I call SwiftVets a 527 non-political committee that had to avoid
express advocacy -- and for the most part, seemed happy to do so in 2004.

I call Super PACs a post-rulemaking, constitutional fix, not only for
SwiftBoaters who were shut down by the FEC rulemaking -- don't forget
SwiftVets and left-leaning 527s all settled for big civil penalties with
the FEC after the election -- but for all groups who don't mind registering
before they speak.

Steve

On Mon, Jun 4, 2012 at 10:03 AM, Marty Lederman <lederman.marty at gmail.com>wrote:

> 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
>>
>>
>

-- 
Stephen M. Hoersting
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