We all know that
Citizens United v. FEC, the 2010 case in
which the Supreme Court lifted restrictions on political speech by
corporations and unions, was
responsible for Democratic losses in that year’s elections. (Or
maybe
not.) What fresh horrors does greater respect for the First
Amendment have in store for us this year?

According to
The New York Times, casino magnate Sheldon Adelson’s $5
million donation to Winning Our Future, a group supporting Newt
Gingrich for the Republican presidential nomination, “underscores
how the 2010 landmark Supreme Court ruling on campaign finance has
made it possible for a wealthy individual to influence an
election.” But as The Washington Post notes in
an editorial decrying the impact of Citizens United,
“individual supporters long have been free to spend…as much as
they wished as long as they did not coordinate with campaigns.” So
it’s not true that Citizens United suddenly
“made it possible for a wealthy individual to influence an
election.”

But it is true that Citizens United, combined
with subsequent court decisions, made “super PACs” like
Winning Our Future possible. Unlike standard political action
committees, which donate money to political campaigns and must obey
contribution limits, super PACs spend their money on independent
advertising and can receive unlimited contributions, including
money from unions and corporations as well as individuals. While
billionaires like Adelson do not need Super PACs to express
themselves, such organizations do enable people of more modest
means to pool their resources, and they offer one way for unions
and corporations, including nonprofits organized under Section
501(c)(4) of the Internal Revenue Code, to exercise the speech
rights recognized in Citizens United.

Why is that bad? In a CNN interview
on Monday, Sen. John McCain (R-Ariz.), who co-sponsored the law
that imposed the speech retrictions overturned in Citizens
United, said it’s bad because the speech is
so negative. He blamed the Supreme Court, even though
one of the main examples discussed in the interview involved words
coming out of Newt Gingrich’s own mouth, which have always been a
cost we must pay for freedom of speech. McCain, like the
Times, cited Adelson’s donation to the pro-Gingrich group,
which is using the money for ads attacking Mitt Romney, the
candidate McCain favors. That seems only fair, since a
pro-Romney super PAC, Restore Our Future, has been running
anti-Gingrich ads. McCain said negative campaigning works,
which is why it is so common, but also backfires on the messenger.
“I think it’s a real danger,” he said, “and obviously I’d like to
see it over with a Romney win in South Carolina followed by one in
Florida.” Translation: Negative campaigning is a necessary evil
until my guy wins. 

I have never understood the complaints about negative ads, which
on the whole seem much more useful and informative than positive
ads. The only positive ad I can recall that helped clarify things
for me was the one in which Rick Perry
expressed dismay at openly gay soldiers, and that was effective
only in the sense that it lowered my opinion of him. Richard Hasen,
an election law expert at U.C.-Irvine, has a more plausible

concern about super PACs:

Given the expected vast spending by presidential candidates and
parties in the general election, I am not very concerned that Super
PAC spending will influence the outcome of the presidential
election, though it might.

I am not even that concerned about Super PAC negative
advertising, which can serve to educate the public and mobilize
some voters to become more politically engaged.

But I am concerned that Super PAC spending will influence the
outcome of close Senate and congressional races. And I am greatly
concerned that when Election Day is over and the public will stop
hearing about Super PACs, contributions to these groups will skew
public policy away from the public interest and toward the interest
of the new fat cats of campaign finance, as members of the House
and Senate thank their friends and look over their shoulder at
potential new enemies.

As Hasen points out, the Supreme Court’s shaky distinction
between spending (speech) and campaign contributions (not speech)
is even shakier now that groups like Winning Our Future, Restore
Our Future, and Back to the Future (my suggestion for a pro-Paul,
constitutionalist super PAC) are run by politicians’ former
staffers and funded by familiar campaign supporters. The super PACs
are prohibited from “coordinating” with candidates’ campaigns, but
politicians are still apt to be grateful to the people who help
them win elections, which is a tendency to keep in mind while
evaluating the performance of elected officials. Still, the
possibility of corruption does not override the First Amendment. If
super PACs are yet another attempt to get around the contribution
limits upheld in
Buckley v. Valeo, why not avoid the pretense by scrapping
those limits once and for all, instead of imposing new rules that
give rise to new “loopholes,” which trigger new rules, ad
infinitum? As The Wall Street Journal notes
in a recent editorial, “the real loophole is the U.S.
Constitution.” 

I
considered the overwrought reaction to Citizens
United in the December 2010 issue of Reason.