The Little-Known Court Case that Helped Give Rise to Super PACs

 

By Ryan G. Shaw

 

While Citizens United v. FEC has been given the most coverage in the media when it comes to money in politics, there is another case which is perhaps even more egregious and which hasn't gotten the attention it deserves. 

This case is just as responsible for the creation of Super PACs as Citizens United is.

The case I speak of is SpeechNow.org v. Federal Election Commission. SpeechNow.org was a registered PAC which, much like Citizens United, wanted to test the boundaries of campaign finance laws in the courts. SpeechNow claimed that it should be re-classified since it did not intend to make contributions to any candidate or party directly. The new classification they sought would alleviate them of all funding requirements that normal PACs must abide by. The decision by the Supreme Court in Citizens United provided the legal logic that, according to Justice Kennedy: “Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

Building upon this legal framework, Chief Judge David B. Sentelle said the Supreme Court had identified only one government interest sufficient to overcome the First Amendment protections afforded to contributions for political speech: preventing corruption or the appearance of corruption.

Since the expenditures themselves do not corrupt, Chief Judge Sentelle reasoned using the Supreme Court's logic from Citizens United: neither do contributions to groups that make the expenditures. The D.C. Circuit court used this logic to formulate its decision -- which gave way to the infamous Super PAC.    

The Court of Appeals for the D.C. Circuit ruled in SpeechNow.org v. Federal Election Commission that PACs that do not make contributions to candidates, political parties, or other PACs could accept unlimited donations from corporations and wealthy individuals. The PACs, officially known as "independent expenditure only committees" are popularly known as Super PACs. Super PACs can take money from anyone, anywhere, at anytime -- all under the false legal logic that Super PACs can't possibly corrupt the political process.

Let's ask the voters in Wisconsin if they think money couldn't possibly corrupt the political process.Wisconsin Gubernatortial Election Results by County, 2012

Almost 30% of union workers voted in favor of Scott Walker in the Wisconsin Governor Recall Election. That is an astounding number. [In the image at right, the red counties were won by Scott Walker while the blue states were won by Tom Barret.] Remember, Walker is famous for wanting to kill the unions, so why would any union member possibly vote for him? That number should be maybe 5% at the most. What would possibly cause these voters to literally vote against their own interests? The numbers are even worse for voters who lived in the same household as union members. Opponent Tom Barret barely edged out Walker in this the demographic, winning only 51% of their vote. A vote for Walker is a vote that will ultimately hurt these households in the future -- if not right away. What could have duped these voters into making such a big mistake?   

The answer lies in the numbers.

Walker outspent Democrat and union supporter Barret by a 7-1 margin.  Walker received over $30 million, 70% of which came from outside of Wisconsin, while Barret only raised about $4 million -- mostly from Wisconsin residents.  

If you think that's bad, you ain’t seen nothin’ yet.

Super PACs spent an estimated $60 million on the election, buying wall-to-wall negative TV ads bashing Barret with slanderous rhetoric. These TV ads, which played constantly for months, were so powerful that they caused 29% of the electorate to literally vote against their own interests out of fear. Check out this video from The Young Turks recapping some of the attack ads that were aired.

So let me ask you now, do so-called "independent expenditures" cause corruption of the political process? Yes. And Wisconsin unfortunately became the latest lab rat in the failed experiment that is money in politics.  

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published this page in Blog 2012-06-27 14:24:00 -0400

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