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Tyson Cole cartoon

USU graphic design student Tyson Cole began cartooning The Deep End in 2011. It appears in the Utah Statesman and Funnies Extra!, a nationally published humor newspaper.

Super Pac or Super Bust?

By Kristen Munson

Super PACs were supposed to be the ultimate political game-changer. Unprecedented spending was predicted for the 2012 Presidential election after the Supreme Court’s decision to permit unlimited contributions by corporation and union treasuries to political action committees. Critics argued the ruling handed the White House keys to the highest bidder.

Senate Majority Leader Harry Reid, ’61, released a statement censuring the decision for opening the door to secret spending by corporations, anonymous donors, and foreign entities, arguing the Supreme Court effectively “erased a century of effort to protect the fairness and integrity of American elections.”

The Citizens United v. Federal Election Commission ruling did help finance the most expensive election in United States history—estimated by the Center for Responsive Politics at more than $6 billion dollars. The stockpiling of cash by candidates and outside groups fighting on their behalf saturated airwaves with political ads in battleground states. However, this month President Barack Obama begins his second term; and despite a tenfold increase in independent expenditures on House and Senate races, both chambers comprise much the same makeup as before. Looking back, what, if really anything, changed with the Citizens United decision? For political science professor Damon Cann, an expert on U.S. elections, the conversation begins with analysis of the past.

‘Everything Changes’

“Normally, presidential primaries go through a process of winnowing,” he said. “The force driving much of the winnowing has been finances. In the past, we’ve seen primaries that have tended to go through five or six states. If you didn’t come in the top three in Iowa or New Hampshire, then your campaign was over. You would drop out.”

The reason was simple. If candidates didn’t win states, they didn’t secure donations towards their campaign through hard money channels—contributions that directly benefit a candidate’s campaign. The field narrows as campaign coffers run dry.

“That has made it so that you have had to find lots of people who believe in you, and to get lots of people to believe in you, you have to show that you can win,” Cann said. “Everything changes in 2012.”

He points to the campaigns of Newt Gingrich and Rick Santorum as examples of how super PACs altered elections. Neither Gingrich nor Santorum raised a lot of traditional hard money contributions, but both remained in the race months after poor performances in New Hampshire.

“Newt Gingrich’s check to Utah—his filing fee—bounced because he did not have enough money in his account to pay the fee to get on the ballot,” Cann said. “Things were that tight for them financially.”

However, they each had one or two wealthy individuals who put millions on the table for them, which carried them through in ways that were not possible four years ago, he said. “If the 2012 Republican primary had taken place under 2008 rules, Santorum and Gingrich would have been washed out of the race way before because nearly all of the advertisements that were running for them were not being paid for by their campaigns.”

Instead, they were paid for by super PACs. Political action committees (PACs) were established long before Citizens United and advocate for a cause or candidate by advertising on their behalf using funds collected from individuals, corporations, and unions. They cannot accept more than amounts set forth by hard money channels—$2,500 per candidate, per election. Citizens United spawned super PACs, named because no limits exist on how much they can collect and spend on independent political communications. However, they are restricted from coordinating their efforts with candidates.

“That opens up massive pots of money that weren’t available before,” Cann said. “It also made it a little bit easier to kind of hide [money] so you can start up a front corporation that’s not required to disclose where its money comes from, give a bunch of money to the front corporation, and then the corporation can spend the money.”

Citizens United Explained

The Citizens United case examined whether or not Citizens United, a conservative, nonprofit corporation, could air a documentary film critical of then Senator Hillary Clinton during the 30-day period before a primary election—a violation of the 2002 Bipartisan Campaign Reform Act. In a 5-4 decision, the Supreme Court ruled prohibiting independent expenditures by corporations and unions violated the First Amendment. The majority opinion argued the government could not restrict political spending without limiting an organization’s ability to speak.

“By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice,” wrote Justice Anthony Kennedy. “The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.”

The minority opinion warned the ruling threatened to undermine elected institutions and campaign finance laws already on the books. Justice John P. Stevens asserted giving the same speech rights to corporations as people would have been inconceivable to the Constitution’s framers.

“In the context of election to public office, the distinction between corporate and human speakers is significant,” he wrote. “Although they make enormous contributions to our society, corporations are not actually members of it…Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters.”

Tony Peacock, a constitutional law scholar, disagrees the decision put elections on shaky ground. He directs Utah State’s Project on Liberty & American Constitutionalism and supports the court’s ruling.

“I think Citizens United was a very good decision,” Peacock said. “The First Amendment is very categorical. It doesn’t make a distinction for campaign finance communications in its protection of free speech. People speak through corporations, they speak through unions. Political speech is arguably the most sacred form of speech and what the First Amendment was trying to protect.”

Professor Peacock argues concerns over political corruption are unwarranted because ethics laws for public servants already exist. Until Citizens United, political speech was protected for those who could afford attorneys to decide if they were in compliance with FEC guidelines, he said.

“We don’t need campaign finance laws that essentially give advantages to the political class at the expense of everyone else,” he said.

He holds Sheldon Adelson, the casino magnate who contributed $53 million to super PACs supporting eight candidates—only one reached office—as proof the ruling did not rattle the foundations of democracy.

“He spent $60 million to accomplish nothing. The idea that people are buying influence is really not true,” Peacock said. “There isn’t a connection between money and electoral success. I don’t think the consequences have been as draconian as many of the critics suggested.”

Super PACs are required to disclose where donations originate, except from groups such as political nonprofits. This poses a problem for those who believe the public has the right to know who’s behind political advertisements. Opponents say it leaves individuals open to persecution.

“We have secret balloting,” Peacock said. “We have that to protect those who have unpopular views, and typically, minority opinions are the most vulnerable.”

His colleague Cann has a different take. In 2011, he ran for public office and won a seat on the North Logan City Council. He understands the importance of having funds in your campaign account—and acknowledging its source.

“I would feel uncomfortable if one person wanted to spend a tremendous amount of money on me,” he said. “It looks bad. Anyone who holds elected office has to be aware of how it looks. If someone is going to be spending 5 or 10 million dollars supporting someone else’s campaign, I want to know who it was…and what was going on. If that were not the case, I would feel really uncomfortable about the possibility of quid pro quo exchanges.”

What Super PACs Do

The majority of campaign spending is on television advertisements. The Wesleyan Media Project tallied more than a million ads aired in the presidential general election, a 39 percent increase from 2008. In Ohio alone, from April to October, both campaigns aired more than 80,000 ads. According to campaign spending reports, only about 15 percent of political advertisements in the 2012 election were positive. Super PACs helped finance much of the negativity.

“The strategy for using super PACs is for the candidates to go out and run positive info about themselves and maybe throw a punch or two that are in bounds,” Cann said. “Then they let the super PACs do the really dirty work.”

Initially, super PACs looked to benefit Republicans, viewed to have deeper pockets of support. However, the deluge of corporate giving didn’t really materialize. The top donors to super PACs were individuals—not corporations or unions. In fact, the possibility of unlimited spending may have leveled the playing field for Democrats who only needed a handful of large gifts to compete, Cann said. Instead of tilting the scales for the Republicans, super PACs dragged out the primary, ultimately making its nominee weaker in the end.

“People kept asking ‘why can’t Romney seal the deal?’” Cann said. “It made that primary last for a very long time and it meant that Mitt Romney had to spend a lot of money just to get through [it.] It did make him look vulnerable as a candidate.”

While super PACs helped prolong the inevitable collapse of Republican challengers, their endurance in the race kept dialogue focused on the interests of the far right.

“During the primaries, every time someone would try to brand [Romney] as a moderate—which is exactly what you want to be in the general election—he would issue a statement or say something that pushed him hard to the right,” Cann said.

Romney spent more than $76 million dollars to clear the field, outspending opponents in some cases nearly ten to one to clinch states like Michigan. While money has always been important in political campaigns, the escalation of war chest spending is a fairly recent phenomenon. Until 2000, candidates submitted to a voluntarily spending limit by accepting matching funds from the federal government.

George W. Bush became the first presidential candidate to eschew matching funds in the primary election and he shattered fundraising records. In 2008, Barack Obama became the first candidate to forego any government funding in both the primary and the general elections. Towards the end, he had so much money leftover he ran ads in pink states and bought ads on Xbox games.

“I didn’t know that existed until the 2008 election,” Cann said.

A More Informed Electorate

For Cann, more money in elections is not problematic. When the verdict for Citizens United was handed down he was not as troubled by the outcome as others, in part because of what he already knew. His investigations of state campaign finance laws suggest those with more restrictions make it harder for challengers to raise money, giving incumbents an advantage since they already have strong name recognition. Cann expects more money in politics will have some positive effects.

“Challengers will be more competitive,” he said. “The Republican primary was far more competitive for better or for worse than it would have been in a pre-Citizens United world. This election [was] more competitive than it otherwise would have been because of super PACs.”

In the fall, a poll conducted by the Associated Press and the National Constitution Center found more than 80 percent of Americans support limitations on campaign contributions by outside groups. Cann is not surprised, admitting, “It’s a hard sell to argue that more money in politics would actually make elections better. If you surveyed Americans, most would say they want more competitive elections and less money in politics. Those forces work in opposition. It’s much harder to win an election if people don’t know who you are—and that takes money.”

He believes more competitive elections means more information about the candidates will reach voters. By this measure, Citizens United could result in a more informed electorate.

“Those things make it sound like Citizens United is the best thing to ever happen to American democracy,” Cann said. “But there are a couple of things that limit that. You’ll note I didn’t say there is [necessarily] more good information circulating about the candidates.”

Electioneering of the Future

It often takes a few election cycles for groups to understand the new rules in play. But they adapt and find ways to support their candidate of choice. Campaigns evolve as new strategies emerge. In 2008, it was the Obama campaign’s use of social media and focus on small donors; in 2012, it was super PACs.

“People who want to spend money in politics are always scheming,” Cann said. “Four years from now the entire political landscape could be different.”

He suspects there will be some attempts to make disclosure of super PAC spending more difficult, and innovation in how campaigns advertise. Television is the cheapest way to reach potential voters en masse with political messaging. For now.

“I think campaigns are going to have to change in a fundamental way in the next 10 years because a lot of people don’t consume video media on TV anymore,” Cann said. More people are seeking alternative ways to view video media. What do you do to reach people who aren’t watching television? The successful campaigner of the future has to think beyond television advertising.”

Campaigns have to change. There are only so many television slots one can buy during a campaign season. Cann predicts traditional word of mouth will become increasingly important. Studies show that the best thing for a candidate is for someone who likes them to talk to all of their friends, he said. “It’s so much more credible…because it’s coming from a trusted source.”

He suggests candidates will develop new ways to personally connect with voters since airwaves are being overwhelmed by groups other than the candidates.

“The candidate is no longer in control of the message,” Cann said. “I think Romney spent less than the super PACs who supported him, so who do you blame [for his loss]? How candidates decide to respond is going to be an issue in the future.”

Since the 1970s, political spending has been equated by the courts with free speech. People want a platform to be heard. With Citizens United, the idea was more voices can enter the conversations.

“The Supreme Court had to make a choice between protecting free political speech or trying to regulate campaign finance. For better or for worse, they chose free political speech,” Cann said. “And with $6 billion raised, we saw more political speech than ever. Was it good for democracy? I don’t know. But at least there can be a collective sigh of relief that the system did not fail as a result of the Citizens United decision.” —km