Super PAC!

Money, Elections, and Voters after Citizens United

Conor M. Dowling, Michael G. Miller

• Publisher: Routledge
• Year: 2014
• eBook ISBN: 9781135054731
• Topic: Politics & International Relations
• Subtopic: Economic Policy
• Index: Politics & International Relations

Recent federal court activity has dramatically changed the regulatory environment of campaign finance in the United States. Since 2010, the judiciary has decided that corporations and labor unions may freely spend in American elections, and that so-called "Super PACs" can accept unlimited contributions from private citizens for the purpose of buying election advertising.

Despite the potential for such unregulated contributions to dramatically alter the conduct of campaigns, little is known about where Super PACs get their money, where they spend it, or how their message compares with other political groups. Moreover, we know almost nothing about whether individual citizens even notice Super PACs, or whether they distinguish between Super PAC activity and political activity by other political groups.

This book addresses those questions. Using campaign finance data, election returns, advertising archives, a public opinion survey, and survey experiments, Super PAC! provides unprecedented insight into the behavior of these organizations, and how they affect public opinion and voting behavior. The first in-depth exploration of the topic, this book will make significant contributions in both political science and applied policy.

1 Citizens United

DOI: 10.4324/9780203509074-2

On January 27, 2010, President Barack Obama went before a joint session of Congress to deliver his first State of the Union address. The event played in a fashion familiar to observers of American politics: The president, flanked by the vice president and Speaker of the House, was frequently interrupted by applause as he commented both on his legislative ideas and his foreign policy objectives. As is typical in such speeches, the president laid out a broad policy agenda, touching on economic recovery, health care reform, and energy policy (among other topics), using the theme “Rescue, Rebuild, Restore” as a rhetorical guide (Zeleny 2010). After the speech, the president gradually made his way out of the chamber, greeting well-wishers and signing programs, as the networks moved to coverage of Virginia Governor Bob McDonnell’s Republican response. It was, in short, business as usual for an American president’s State of the Union address.

But there was one moment in the president’s address that was decidedly atypical, even if it likely went unnoticed by many who watched from their homes. Midway through the speech, President Obama pivoted from a discussion of the nation’s fiscal woes to discuss what he saw as a “deficit of trust” in government among the general public, characterized by “deep and corrosive doubts about how Washington works that have been growing for years.” Obama proposed that in order to increase public confidence in government, Congress and the executive branch focus on working together “to end the outsized influence of lobbyists; to do our work openly; to give our people the government they deserve.” Specifically, the president suggested greater disclosure rules for lobbyists, and noted that his administration had excluded them from the policymaking process. He then went much further:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems. (ibid.)

This instant in the president’s speech, while brief, was a notable one because presidents rarely use the State of the Union address as a vehicle to affect public opinion regarding the actions of the U.S. Supreme Court. Indeed, President Obama’s remarks made him just the second president since 1960 to discuss federal court decisions during such an occasion (Parsneau 2013), and aside from Franklin Roosevelt’s admonishment of the New Deal–averse Court in his 1937 address, Obama’s direct characterization of a Supreme Court decision as a mistake was unprecedented in a State of the Union message (Barnes 2010). The rarity of such a moment is understandable; presidents frequently use their State of the Union address to suggest congressional action on future policy, but criticizing a Supreme Court decision is tantamount to arguing with an umpire after a call has been made. As the highest judicial authority in the land (and an unelected one at that), presidents have little to gain from twisting the arms of Supreme Court justices by influencing mass opinion with the so-called bully pulpit.

Moreover, the decision to which Obama was referring, Citizens United v. Federal Election Commission (558 U.S. 310 (2010)), may have seemed unlikely to have been the topic of conversation around many American dinner tables during the week between its release and the president’s remarks, since its effect was to make changes to rules about who could spend money to promote campaigns or viewpoints during elections. Compared to regulatory policies that force people to change their behavior, or redistributive ones that raise taxes or change government benefits, the politics of campaign finance reform generally do not draw much attention from many people (see: Lowi 2009). Rather, changes to campaign finance policies are debated in the halls of government by elites, with commentary from cable news pundits that fails to rise to incendiary levels. Moreover, very few Americans typically contribute money to political organizations: Fewer than 5 percent gave money to politicians in 2008.¹ Simply, because changes to campaign finance laws affect few Americans in a direct way, it is difficult to provoke a strong mass reaction about them.

That he took on the Court anyway illustrated President Obama’s deep frustration with its decision in Citizens United. The opinion in that case allowed both for-profit and nonprofit corporations, as well as labor unions, to spend money on communications during elections, even when their message expressly advocates the election or defeat of a candidate. The practical implication of the decision was that corporations and unions were allowed to either purchase advertising or other communications materials directly, or to donate funds to other groups so long as their money ultimately went only toward independent communications (and not to candidates or parties).

Given his remarks that evening, Obama appeared to have two concerns about the case’s likely impact: First, he thought it possible that groups with access to vast resources might choose to spend a great deal of money during a given election, which could conceivably drown out the voices of candidates or interested, less-wealthy citizens. Second, the president expressed some worry that foreign-owned corporations could inject money into American politics via their subsidiaries within the United States. In either case, Obama likely reasoned that the viewpoint of the average voter was less likely to be expressed in the post–Citizens United world. Thus, Obama’s position was that in allowing corporate spending during elections, the Supreme Court had favored the interests of small, relatively wealthy groups over those of individual American voters.

But the evening also demonstrated that there was a fair amount of disagreement among political elites about what Citizens United actually meant for the future of American elections. Such discord was on display even as the president made his remarks, as Associate Justice Samuel Alito—who had voted with the majority in the case—mouthed the words “not true” from his seat in the front row (Barnes 2010). It was less clear though which part of the president’s statement Alito found to be untrue. Certainly, President Obama’s contention that the decision “reversed a century of law” was dubious.² Bans on direct corporate donations to political candidates had been in effect for more than a century, but Citizens United did not enable corporations to contribute money to candidates for office. Alternatively, perhaps Alito took issue with Obama’s assertion that Citizens United would render an environment in which “special interests … bankroll American elections.” If corporations are merely groups of people with a common interest, Alito (and the rest of the justices in the majority) could argue that the Court’s decision had merely made it possible for a wider range of voices to be heard.

The exchange between the president and Justice Alito underscored their very different personal orientations to campaign finance regulations. On one hand, Alito and his majority colleagues had crafted an opinion in accordance with the views of many civil libertarians. In this framework, political money is viewed as effectively the same thing as political speech, because the former presumably facilitates the dissemination of a specific message. Assuming that political speech is sacred in a free society, adherents to this viewpoint tend to view campaign finance regulations with skepticism, arguing that they complicate the act of speaking in a political setting. On the other hand, the president—like many other Americans who favor reforms geared toward making elections more competitive, transparent, and reflective of the “will of the people”—expressed a willingness to tolerate some restrictions on campaign spending in the interest of achieving those ends. Thus, the president might have argued that although money does largely equate to speech in American politics, it is still important to consider the implications of allowing money to freely enter the political system, regardless of its source and sum.

Most everyone agrees that free speech is a cornerstone of American democracy, but political equality is also valued, and it seems reasonable to argue that few Americans want their political system to be slanted in favor of the rich and powerful. Debates over campaign finance regulations therefore often pit free speech against fairness, and the public confrontation between the president and the Supreme Court in early 2010 certainly reflected that. Regardless of which side in the debate is correct, it is safe to say that 2009–2010 was a significant year in American campaign finance. Together with another federal court case (SpeechNow.org v. Federal Election Commission, discussed at length in Chapter 2), the Citizens United opinion substantially altered the regulatory landscape, allowing for a much wider range of groups to directly infuse money into the system. The president and the Supreme Court may have been at philosophical odds in early 2010, but neither could say for sure what the practical effects of those decisions would be. Before considering those effects, we examine the roots of the new campaign finance environment in the United States.

Citizens United Makes a Movie

The chain of events leading to President Obama’s comments was preceded by several important cases dealing with campaign finance law, each of which ultimately had implications for Citizens United v. Federal Election Commission. Campaign finance rules are often reviewed by the courts to make certain they do not infringe upon an individual’s or group’s First Amendment speech rights. As such, campaign finance laws are typically subject to strict scrutiny, which necessitates that the government prove a law furthers a compelling government interest (for example, reducing the appearance of corruption) and is narrowly tailored to achieve that interest (United States v. Carolene Products, 304 U.S. 144 (1938), Footnote Four). With the federal courts applying strict scrutiny standards over the years, some campaign finance laws have been upheld, while others have been judged unconstitutional (for extended discussions, see: Gora 2011; Lowenstein et al. 2008). The principles of these cases are important for understanding why the Court made the decision it did in Citizens United, and we discuss them below. However, it is also important to understand the origins of the Citizens United case, which was set in motion two years before President Obama’s comments when a nonprofit group made a movie.

The group, a conservative advocacy organization calling itself Citizens United, had since 1988 been dedicated to the advancement of American conservative principles such as “limited government, freedom of enterprise, strong families, and national sovereignty and security.”³ The organization pursued its objectives mainly through the utilization of so-called grassroots tactics, employing a mix of policy advocacy, organization, and mass education about public policy in an effort to influence public opinion. It also maintained a separate political action committee, Citizens United Political Victory Fund (CUPVF), which accepted contributions from like-minded individuals (subject to $5,000 limitations per election) and passed that money along to candidates it supported. During the 2008 election, for instance, CUPVF raised more than $3.5 million from private donors, and contributed about $250,000 to candidates running for federal offices. All of the recipients of CUPVF funds were Republicans.⁴ In short, Citizens United was—and is—not unlike a myriad of other groups in Washington D.C., seeking to influence public policy by changing both the minds of voters and the composition of Congress.

One of its primary methods of speaking directly to the voting public was the production of books—and later, of documentary films—that promoted the group’s viewpoint. Since 2000, for instance, Citizens United has released films detailing a conservative case for American energy and immigration policy changes, among others. The organization has also proven itself quite capable of assailing those on the other side of the political divide, from groups it views as adversarial like the American Civil Liberties Union to the United Nations, which it perceives as threatening American sovereignty. Left-leaning politicians are also fair game. Indeed, every Democratic presidential nominee from 2000 onward has been the subject of a highly critical Citizens United production, from the 2000 book Prince Albert: The Life and Lies of Al Gore to a film titled Hype: The Obama Effect.⁵

It was, however, a 2008 film about then–New York Senator Hillary Clinton that garnered Citizens United national attention and set the stage for significant changes to American campaign finance regulations. Clinton was running in the 2008 Democratic presidential primary, and in Hillary: The Movie, Citizens United advanced a sustained case against her nomination. Over its 90 minutes, Hillary: The Movie employed archival video intermingled with both critical narration and interviews conducted with Clinton detractors. The film unrelentingly assaulted Clinton’s character, accusing her of untruths and obfuscation throughout her career not only as an Arkansas attorney, but also in public life as both first lady (of both Arkansas and the United States) and as a United States Senator.

The film’s clear goal was to raise doubts about Clinton’s honesty and capacity for leadership. It reminded viewers of her highly visible role in the failed attempt at large-scale health care reform during her husband’s presidency, and questioned whether she truly possessed the policy credentials that she had allegedly claimed early in the primary. It also depicted her as, in the words of one interviewee, “steeped in sleaze,” while speculating about her involvement in a number of scandals during her time in both Arkansas and Washington. The film was by any measure an effort to convince viewers that a Hillary Clinton presidency would result in policies antithetical to the beliefs of American conservatives. Dick Morris, former aide of President Bill Clinton turned critic, pointedly expressed such anxiety during an interview shown in the film, saying “Hillary is really the closest thing we have in America to a European socialist.”⁶

Hillary: The Movie was certainly red meat for conservative anti-Clinton voters, but given the questions it introduced about Clinton’s character in general, it held the potential to raise doubts about her even among less ideologically motivated viewers. Citizens United therefore wanted the film to reach as many eyes as possible, and so just before Democratic voters got the chance to start casting their presidential primary ballots in early 2008, the group began the process of marketing and distribution. This was a two-step process. First, Citizens United intended to sell DVDs of the movie directly to consumers through its website for $23.95, and also to screen the film in seven theaters nationally (Citizens United v. Federal Election Commission, 530 F. Supp. 2d 274 (D.D.C. 2008) [2008 BL 7985]). The second phase introduced some elements of broadcast media. Citizens United planned to place the film among the “on-demand” offerings of cable and satellite television providers, which would allow their customers to order the movie from their home TV and watch it at their convenience. To raise awareness about the movie—and to persuade people to purchase an on-demand viewing—Citizens United also created media advertising for it, which was intended to air in one 30-second and two 10-second advertisements during programs that promised to have healthy proportions of conservative viewers. These advertisements were intended to air both before and after the film’s theatrical release date in January of 2008, which coincided with early Democratic nominating events.

These decisions were not without risk, since the Federal Election Commission (FEC)—the agency tasked with enforcing federal campaign finance laws—could very well have deemed them illegal and punishable with large fines and up to five years of jail time. Citizens United’s immediate problem in 2008 was that it was itself a nonprofit corporation, while part of its funding—and, therefore, funding for the film—had also come from corporate sources. Thus, either advertising or broadcasting the film was likely to be judged as a violation of the Federal Election Campaign Act (FECA), which had banned direct corpor...

Table of contents

• Cover Page
• Epigraph
• Half-Title Page
• Series Title Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of Figures
• List of Tables
• Acknowledgments
• Introduction
• 1 Citizens United
• 2 Rise of the Super PAC
• 3 Money in Elections
• 4 Does It Matter Where Money Comes From?
• 5 Super PAC Ads in the 2012 Presidential Election
• 6 Public Opinion of Campaign Finance after Citizens United
• 7 Prospects for Campaign Finance Reform
• References
• Appendixes
• Index