It's official: Americans hate super PACs. A new Washington Post-ABC poll says nearly seven in 10 registered voters think they should be illegal. If you just take independents, a whopping 78 percent believe the fundraising vehicle should be banned outright. The results shouldn't surprise anyone who reads the news: Since the Supreme Court's landmark Citizens United decision, super PACs have been depicted as secret, malevolent slush funds of unyielding corporate influence. (We've done our part as well.) The question is: Has the media accurately depicted this new trend in electioneering or have the doomsayers been over-stating their case?
Waging war on the rhetorical plane of this debate is Mediaite owner Dan Abrams, whose lawyer dad Floyd Abrams won the Citizens case, Wendy Kaminer, a lawyer and Atlantic contributor, and Rick Hasen, professor of law and political science at the University of California Irvine. Abrams and Kaminer say the media has grossly distorted Citizens United while Hasen, in an essay for Slate on Friday, said they're both living in a dream world. To get to the bottom of this, we spoke to a handful of practicing election lawyers to see how their jobs have changed since the rise of super PACs and Citizens United.
What we got was a mixed bag of real changes and things that have stayed the same since before the advent of super PACs. In a point for Team Abrams, one of the common media misconceptions agreed upon was the issue of donor anonymity. As Abrams wrote in February, one of the common media myths was that in Citizens United, "The Court invalidated disclosure requirements in political advertising, thereby allowing donors to remain anonymous." Brett Kappel, an election lawyer at Arent Fox, tells us "Dan is right." And that's because the court ruled just the opposite in the 2010 case, upholding the McCain-Feingold requirement of identifying donors by an 8-1 vote.
The second media myth cited by Abrams and Kaminer is much more contested. Both note that newspaper articles often cite how Citizens United opened the door to affluent donors to pour millions of dollars into PACs. Abrams and Kaminer emphasize that was dealing with corporate and union donations and that it "did not expand or address the longstanding, individual rights of the rich to support independent groups." For the most part, Jan Baran, an election lawyer at Wiley Rein, told us that's true. Wealthy individuals have always been able to spend unlimited amounts of money through 527 organizations for decades. "The wealthy have funded independent ads for over 35 years directly and in a variety of other ways," he said. "In 2004 the funding was through groups like Swift Boat Veterans and the Democratic counterparts that received tens of millions of dollars from George Soros and friends. Today, these wealthy individuals can simply give the money to a Super PAC instead of hiring the exact same consultants and pay them directly for the ads." Michael Toner, another practicing election lawyer at Wiley Rein agreed.
However, Kappel notes that Abrams's and Kaminer's point is only partially right. In some respects, that's because these 527s existed under a shady legal cloud, which inhibited wealthy donors from throwing their money into campaigns at the same pace as they're doing now. As Hasen rightly notes, "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." And if you look at the increase of outside, independent spending provided by the Center for Responsive Politics in the aftermath of the 2010 case, you can see that indeed, it has greatly increased:
As Hasen notes, "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."
Alas, now that everyone hates super PACs, it's clear that some of the media shaming has been exaggerated in terms of the rise of anonymous spending. But one thing's for sure: It does seem to have triggered an explosion of spending. And because Americans routinely say they want more money out of politics, it's no surprise the argument against super PACs has stuck.