On Jan. 21, 2010, the Supreme Court in the Citizens United case struck down the ban on corporate spending in federal elections and opened Pandora's Box.
The Supreme Court's decision played a pivotal role in the rise of Super PACs.
Super PACs are federally registered political committees that raise unlimited contributions from wealthy individuals, corporations, labor unions and other entities and use the funds to make independent expenditures to influence federal elections. They are required under federal law to report their contributions and expenditures.
In recent weeks, there have been a series of unwarranted and misguided attacks against the media for linking the Citizens United decision to the rise of Super PACs in our elections.
On Feb. 7, 2012, Floyd Abrams attacked a Washington Post column by E.J. Dionne and said in essence that Citizens United did not have anything to do with the fact that Sheldon Adelson is able to contribute millions of dollars to the candidate-specific Super PAC supporting Newt Gingrich. Abrams is an attorney who represented Senate Republican Leader Mitch McConnell in the Supreme Court in the Citizens United case.
On Feb. 8 in a Mediaite column, Dan Abrams, a legal analyst for ABC News, attacked a number of members of the media claiming that they had repeatedly misstated the holding of Citizens United. Dan Abrams described as a "myth" the idea that the Citizens United decision "opened the door to wealthy individuals like Sheldon Adelson to pour millions of dollars into PACs."
On Feb. 24, Wendy Kaminer in an op-ed on the website of The Atlantic attacked The New York Times editorial page for "its disingenuous assault on Citizens United." Kaminer also attacked the Times more broadly by saying that its new stories and columns have "repeatedly mischaracterized Citizens United, explicitly or implicitly blaming it for allowing unlimited "super PAC" contributions from mega-rich individuals."
On March 1, conservative columnist George Will also mistakenly claimed in a Washington Post column that "Actually Citizens United has nothing to do with Adelson and others who are spending their own money, not corporations."
These attacks on the media are wrong.
The two cases most relevant to the rise of Super PACs are the Supreme Court decision in the Citizens United case in 2010, and the subsequent D.C Circuit Court of Appeals decision in the SpeechNow case. The SpeechNow decision is explicitly based on the Citizens United decision.
In Citizens United, the Supreme Court overturned a longstanding statute and past Court decisions in ruling that corporations can make unlimited expenditures in federal elections as long as the corporations spend the money independently from the candidates they are supporting.
The Supreme Court's decision was interpreted by the FEC to mean that corporations can also give unlimited amounts to groups, like Super PACs, to use in making independent expenditures.
In the subsequent SpeechNow decision, the full D.C. Circuit Court of Appeals ruled that individuals like Sheldon Adelson can make unlimited contributions to political committees, like the Super PAC supporting Newt Gingrich, as long as the committee makes only independent expenditures, and not contributions, in federal elections.
It is this decision that freed up the Sheldon Adelsons of the world. And the D.C. Circuit based the SpeechNow decision directly on the Citizens United decision. The Circuit Court stated that the Citizens United decision "resolves this appeal" and held:
In accordance with that decision, we hold that the contribution limits of 2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3) are unconstitutional as applied to individuals' contributions to SpeechNow.
The SpeechNow decision held unconstitutional, in the case of a federal political committee that only makes independent expenditures, a longstanding limit of $5,000 per year on contributions from an individual to a federal political committee. This contribution limit had applied to all PACs -- including those that made only independent expenditures.
While the 1976 decision in Buckley v Valeo had declared unconstitutional a limit on how much money an individual could independently spend to influence federal elections, the $5,000 limit on how much an individual could contribute to a political committee that made independent expenditures had been the law of the land since 1974, was not struck down by the Buckley decision and remained in effect for decades.
This is the individual contribution limit that was declared unconstitutional in 2010 in the SpeechNow decision, based on the Citizens United decision.
It is plain wrong to claim the Citizens United decision had nothing to do with the ability of individuals to make unlimited contributions to Super PACs when the SpeechNow decision that struck down the limit on these contributions was explicitly based on the Citizens United decision.
Critics also wrongly have claimed that the kind of unlimited contributions made by Sheldon Adelson to the Super PAC supporting Newt Gingrich have been allowed for years. The critics point to the millions of dollars that George Soros gave to two pro-Democratic 527 groups, ACT and The Media Fund, to support Senator Kerry in the 2004 presidential election, as well as to the unlimited contributions used by a pro-Republican 527 group, Swift Boat Veterans for Truth, to attack Senator Kerry in that campaign.
But these unlimited contributions were illegal precisely because they violated the $5,000 limit on individual contributions to political committees and the FEC fined those 527 groups for raising and spending those funds.
George Will got it wrong again in his column when he claimed that critics of super PACs "were remarkably reticent in 2004" in challenging the Soros contributions.
In fact, in 2004, Democracy 21 joined by two other reform groups, filed FEC complaints against ACT, The Media Fund and Swift Boat. Those complaints resulted in FEC findings that the two pro-Democratic groups, supported by Soros' contributions, had spent $150 million illegally and that Swift Boat had spent $20 million illegally to influence the 2004 presidential election.
The FEC concluded that the groups should have registered as federal political committees and, as such, they were bound by the $5,000 limit on individual contributions they could accept -- the same individual contribution limit that was later struck down in 2010 in the SpeechNow decision, based on the Citizens United decision.
In other words, the unlimited contributions raised by the 527 groups in the 2004 election were illegal.
This certainly doesn't support the claim that what Adelson is doing now was done legally in the 2004 elections. Just the opposite is true. What Adelson is doing now was flatly illegal in 2004.
The bottom line: the Supreme Court's decision in the Citizens United case is the basis for the rise of Super PACs and for the corrupting role they are now playing in our national elections.