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Citizens United? Don’t Worry Your Pretty Heads About It

Everyone loves a good counter-intuitive story, but Washington loves one sort in particular: the kind that assures us all that something we’ve been led to believe was a worrisome problem is, in fact, not all that big a deal after all, thus allowing us to return to watching “Veep” or “The Newsroom.” Yesterday’s New York Times Magazine offered a classic of this form, a Matt Bai piece arguing that the Citizens United ruling of 2010 is not nearly as responsible for the boom in campaign spending by outside groups as those whiny goo-goo types make it out to be:

The oft-repeated narrative of 2012 goes like this: Citizens United unleashed a torrent of money from businesses and the multimillionaires who run them, and as a result we are now seeing the corporate takeover of American politics. As a matter of political strategy, this is a useful story to tell, appealing to liberals and independent voters who aren’t necessarily enthusiastic about the administration but who are concerned about societal inequality, which is why President Obama has made it a rallying cry almost from the moment the Citizens United ruling was made. But if you’re trying to understand what’s really going on with politics and money, the accepted narrative around Citizens United is, at best, overly simplistic. And in some respects, it’s just plain wrong.

Bai makes some good points, though they’re ones that the country’s campaign finance beat reporters have been making for some time now—that most of the outside spending (the disclosed outside spending, at least) has come in the form of spending by ultra-wealthy individuals, not the corporations who were most directly affected by Citizens United; and that billionaires like Sheldon Adelson and George Soros were already finding ways to spend a lot on their own before Citizens United. But Bai goes too far in his attempt to overturn the conventional wisdom. For a detailed pre-buttal, see Rick Hasen’s piece in Slate, which among other things makes this point, which Bai only briefly glides by in his counter:

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 to say that people giving to 527s to support Clinton could face criminal liability.
After Citizens United, the courts (most importantly in 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 of this theory about corruption, 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.

I’m not nearly as versed in the details of campaign finance law as Hasen and others, but I would venture that there is another important counter to Bai’s dismissal of Citizens United: his theory that wealthy liberals are being wildly outspent this year simply because they are not as revved up as they were in in 2004 and 2006, when they were in opposition to the White House, or as revved up as conservative donors are today. Bai writes:

Today it’s much easier to tap into the fury and anxiety of out-of-power millionaires than it is to amass contributions in defense of the status quo. This dynamic probably explains why wealthy Democrats who pioneered the idea of outside money during the Bush years have largely stood down this year, even while conservative fund-raising has soared. It isn’t that liberals don’t like Obama or grow queasy at the mention of super PACs. It’s a function of human nature: nobody really gets pumped up to write a $10 million check just to keep things more or less as they are.

I strongly disagree. Yes, there are a couple liberal billionaires who gave a ton in 2004 to save the country from George W. Bush, but are lying low this year: Soros and Peter Lewis, the Progressive Insurance chairman who has turned his focus to marijuana law reform. But there is a whole other swath of wealthy liberals who realize full well what the stakes are in this fall’s election, even if they are perhaps not as “pumped up” as they were in 2004. But they are holding back from giving as much as they could to the SuperPACs and other outside groups precisely because they are “queasy” about them. That is what I found in speaking to many of these potential donors for a recent article, and it is what Robert Draper found in reporting his own recent Times Magazine piece about the pro-Obama SuperPAC. Put simply, Citizens United put liberals at such a disadvantage not only because the other side has more millionaires and billionaires and friends in high corporate places, but because the left’s millionaires and billionaires have existential qualms about unlimited campaign donations that simply do not exist on the right. As I wrote:

This time around, rather than simply rally their friends and colleagues around an inspiring cause, these donors are also being asked to cut massive checks. And because many of them share Obama’s disdain for the excesses of a broken campaign finance system, the exercise has prompted considerable squeamishness. One bundler who has raised more than $800,000 told me there was “an aversion to the super PACs, to the whole idea of them” in the bundler’s circle. “It’s left a really bad taste in people’s mouths.” “I think it’s awful,” says another bundler who has raised more than $600,000 for the campaign this year. “There’s too much money being spent on these elections to begin with. Why would anyone want to give $5 million to a super PAC to elect a president? It’s incomprehensible. There are a lot of other things you can give your money to.” Such as? Hospitals and investigative journalism, offered the bundler.
Another donor who had contributed a six-figure sum to Priorities was already experiencing serious buyer’s remorse. “I’m very much against people who give; everyone who gives to it has made a mistake,” lamented the donor. “I should not have given [the money] I gave.” I asked whether the stratospheric sums being raised by Republicans required wealthy Democrats to set aside these sorts of qualms. After all, Obama himself adopted this logic when he grudgingly endorsed Priorities’ efforts in February. “I understand the argument, that the bad guys are using this. But it’s a question of moral standing,” the donor explained. “We should have said, ‘This is bad for America,’ and we should have appealed to the American people. . . . Our side gave into panic for short-term gain.” The fund-raiser who met with Burton and Begala in Chicago essentially agreed: “With the benefit of hindsight, they should have said no to going [the super PAC] route—it’s disgusting. I think they’re shocked at how unsuccessful they’ve been.”

Near the close of his piece, Bai makes another it’s-not-so-bad-after-all point, arguing that the post-Citizens United landscape actually inconveniences candidates to some degree because they are unable to control the outside spending being marshaled on their behalf: “What the reform-minded architects of McCain-Feingold inadvertently unleashed, what Citizens United intensified but by no means created, is a world in which a big part of the money in a presidential campaign is spent by political entrepreneurs and strategists who are unanswerable to any institution. Candidates and parties who become the vehicles of angry outsiders, as Mitt Romney is now, don’t really have control of their own campaigns anymore; to a large extent, they are the instruments of volatile forces beyond their own reckoning.”

On this one, one need look no further than to another section of the same day’s Times, Nick Confessore's profile of one Carl Forti, who was the political director of Mitt Romney's 2008 campaign and is now “the political director of American Crossroads, the super PAC founded by his mentor, Karl Rove; Mr. Forti’s firm, the Black Rock Group, is a consultant to tax-exempt groups like the 60 Plus Association, which are expected to spend millions of dollars on ads this fall; and he is a founder of Restore Our Future, the super PAC that helped Mr. Romney in his bid for this year’s Republican presidential nomination.” Meanwhile, Ed Gillespie, the former RNC chairman who co-founded the Crossroads groups with Rove, is now a leading adviser to the Romney campaign in Boston.

So really, now: “Volatile forces beyond their own reckoning”? Only someone trying willfully to rationalize the status quo could see it as such.

follow me on Twitter @AlecMacGillis