Sunday, November 14, 2010

Mixed Reviews for First Post-Citizens United Election

      The United States has just completed its first, post-Citizens United national election. Total cost: $4 billion, including nearly $300 million from independent groups that benefited from the Supreme Court’s decision freeing corporations and unions to spend unlimited sums in political campaigns. The reviews are decidedly mixed.
      “We’ve just seen our first $4 billion election, and it wasn’t pretty,” says Arn Pearson, vice president for programs at Common Cause, the granddaddy of campaign finance reform groups. “I don’t think anyone believes voters were better served as a result.”
      To the contrary, says Bradley Smith, chairman and co-founder of the deregulatory Center for Competitive Politics. “By most standards, this was one of the most issue-oriented campaigns ever,” Smith says. More races were competitive, he says, challengers were well-funded, and voter turnout was up.
      As for independent expenditures, they amounted to less than 10 percent of the total, Smith points out. “Corporate and union spending did not drown out individual spending,” he says. There were “more voices, more people participating,” Smith says. “That’s a good thing.”
      The clashing views show that no one has changed positions since the Roberts Court Jan. 21 decision in Citizens United v. Federal Election Commission to wipe out the century-long ban on direct corporate spending in federal elections. Like the Roberts Court’s conservative majority, Smith and other critics of campaign finance regulation view the ruling as a victory for the First Amendment. Like the liberal dissenters, Common Cause and other campaign finance reform groups say the decision will make elected officials all the more beholden to moneyed special interests, especially corporations.
      The critics are especially concerned about what they calculate as about $138 million spent by independent groups with no obligation to disclose their donors. “It’s difficult to quantify the impact of that anonymity,” says Shelia Krumholz, executive director of the Center for Responsive Politics (CRP). “Anonymity has to be public enemy number one.”
      One group stands out for the critics: Crossroads Grassroots Policy Strategies (Crossroads GPS), created by Bush White House political guru Karl Rove as an affiliate of American Crossroads, the so-called “Super PAC” that he helped found with former Republican National Committee chairman Ed Gillespie. As a political action committee, American Crossroads is subject to disclosure requirements, but Crossroads GPS is outside campaign finance laws because electioneering is (purportedly) not its “primary activity.”
      Together, the two groups spent nearly $39 million in the congressional races, but Crossroads GPS is not disclosing the donors for its $17 million share of that amount. It spent big on some key races, according to CRP, either to oppose Democratic candidates or support GOP contenders. Some spending paid off: $4.4 million in the Illinois race won by Republican Mark Kirk and $1.1 million in the Kentucky contest won by Republican Rand Paul. But some did not. The group invested $3.5 million in trying to defeat Democratic senator Patty Murray in Washington and more than $2.25 million in seeking to oust Senate Majority Leader Harry Reid in Nevada.
      Smith, who had two years to put his deregulatory views into practice as member and chairman of the Federal Election Commission (FEC), scoffs at the disclosure issue. Critics talk about “the shadowy group founded by Karl Rove and Ed Gillespie,” Smith says. “How shadowy is that?”
      “All of the ads have to identify who paid for them,” Smith notes, “but they don’t have to identify who gave the money to the organization that paid for them.” Some people want more disclosure, Smith acknowledges, “I don’t see that there would be a lot more gained if there were,” he says.
      The election included some good news for critics of out-of-control campaign spending. The two most prominent profligate spenders went down to defeat in campaigns financed from their own pockets: Republican Meg Whitman, who spent $140 million running for governor of California, and GOP hopeful Linda McMahon, who spent $50 million in Connecticut’s Senate race.
      Independent spending, on the other hand, does appear to have been effective in helping tilt some pivotal contests, according to a report by Public Citizen, the Nader-founded advocacy group. It found that the winning candidate enjoyed a nearly 3-to-1 advantage overall in unregulated third-party spending in 58 out of 74 party-shifting congressional races. Prime examples were the Illinois and Pennsylvania Senate races, contests won by Kirk and Pennsylvania’s Pat Toomey after outside groups poured millions into opposing Democratic nominees ($8 million in Illinois, $5.3 million in Pennsylvania).
      Disclosure laws are the next target of campaign finance deregulators. In Citizens United, the Supreme Court upheld disclosure requirements, with only Justice Clarence Thomas dissenting. Even if broad constitutional challenges are rejected, the Crossroads GPS example illustrates the gaps — critics call them loopholes — in existing law.
      At a post-election forum, Common Cause reiterated its stance for broader disclosure and for some form of public campaign financing. And it calls for a constitutional amendment if necessary to overturn Citizens United. The decision, Pearson said, “cannot stand.”
      To Smith, now a law professor at Capital University Law School in Columbus, Ohio, the complaints are nothing more than “whining.” The elections, he says, “were not a catastrophe.” As for Citizens United, “more and more people will say we can live with this.”

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