Transcript: Allen Dickerson on Citizens United & the influence of Super PACs
Transcript of remarks by Allen Dickerson, Legal Director and Interim Executive Director of the Center for Competitive Politics, on Super PACs at a panel hosted by the Sunlight Foundation on Jan. 23, 2012:
“So I will be playing the role of the loyal opposition today. And you’re right – Socialist Workers is one of my favorite cases.
“I feel it sort of bears mentioning that neither a majority of the Supreme Court nor those of us on the broadly defined right want to corrupt government anymore than anyone else does.
“And I think we also don’t have particular problems with disclosure. As was pointed out, eight of nine justices agree that disclosure is good for everyone else here.
“The difference is that we think there’s already so much of it.
“And I actually have a half page of notes on why that’s the case, but thankfully my co-panelists have already demonstrated that Super PACs have exactly the same reporting requirements as do normal PAC, which in my view is fairly substantial.
“I wasn’t going to discuss [501(c)(4)] right off the bat but since that’s the direction this conversation is going, I’m going to briefly push back.
“We haven’t yet seen the ‘Russian doll’ problem. And you’re right, it might be that at the end of this month we find out that there’s hundreds of millions of dollars of (c)(4) money just sort of swirling out there.
“I find that extremely unlikely for a few reasons, mostly just economic.
“The fact of the matter is a (c)(4) can spend money on political advocacy, but it can’t be a major purpose. Which means at a minimum, they can’t spend more than 50% of what they’re actually taking in on ads and donations to PACs and thing of that nature. So anyone who wants anonymity badly enough to take a 50% cut right off the top of their contribution – I just don’t see that happening.
“Second of all, any of that money that isn’t spent actually is taxed. So generally the money that goes – you know – handled by a (c)(4) is non-taxable income. The contribution might be under gift tax, but that’s a separate question.
“But if you’re spending 49% – let’s take the worst case scenario – of your (c)(4) donations as political advocacy money, all of that is taxable. And again, that’s another haircut that’s coming off the top of your contribution. So it’s an extraordinarily inefficient way of influencing politics if that’s what you’re trying to do.
“I should also point out that a lot of the (c)(4)s – I mean, I think people think of c4s in the current debate as these are shadow organizations like ‘Americans for Apple Pie’ – who are terrible, terrible people let me tell you. But it’s a lot of groups. It’s the NRA. It’s the Sierra Club. It’s most of the people you would think of as major advocacy organizations are (c)(4)s. And they’re obviously interested in participating in politics.
“But I think you have to keep in mind that – a couple of things. One, a lot of people who are c4s you’ve heard of don’t make fortunes off of billionaire contributions. They take in large amounts of small donations from large number of people, and they reflect a reasonable sort of grassroots approach to particular issues. So I think painting (c)(4)s as the enemy in this year’s election is a mistake.
“I may be proved wrong, as I’ve said, because there’s so much disclosure. But sitting here today, I think it’s very unlikely that we’re going to see all this funneling of money through c4s. That’s my spiel on that. There are four separate people to rebut me.
“So let me just give you sort of my overall view of how disclosures should work. I think this is a lot of what the Supreme Court had in mind.
“I tend to take issue with the idea that the Supreme Court said, ‘Here’s our ruling on a major First Amendment case, but we don’t really know what we’re talking about about disclosure.’ I mean, Citizens United had amicus briefs from just about everybody and their mother. I think roughly a tenth of American lawyers were engaged in some way in this case. It was ridiculous. I don’t think the Supreme Court was uninformed when it was talking about disclosure in that case.
“And they didn’t suggest particular changes. They didn’t suggest that future cases would turn on those sorts of enactments. And I’m not sure that necessarily impacts the constitutionality of any sort of legislation. I would tend to think – and I’m sure you all would agree with me – that most of the disclosed sort of suggestions that have been brought to Congress would probably pass constitutional muster. But that doesn’t make them a good idea.
“And I don’t think we should read the Supreme Court’s opinion as saying, ‘You know what you guys really need to do is pass a new law in disclosure.’ I read the case as basically saying there is a lot of disclosure out there and that’s the way a democracy deals with First Amendment problems.
“So, an alternative view. In my view, it’s a question of who should be disclosing the contributions. In my view, that should be the person that’s actually controlling their content.
“This idea that whoever in any point during an entire chain of funding might have given $1 – I think is dangerous. I mean, a lot of people will say, ‘Well, look the Chamber of Commerce spent – what was it? – $30 million during the 2010 election, and we want to know precisely who their membership was and who gave them that money.’ Well, if you’re going to go that direction, I think you have to be consistent. You have to say, you know, the NRA also spent money – we should get their membership list. And I think that that sort of approach would pose grave constitutional problems. And I think that it would – well, I would look forward to litigating it against anyone at this table.
“As far as what should be disclosed. This is, again, a related issue. A colleague of mine, I thought, had a very good idea on this, which is to take the Daubert standard of evidence in federal court and use that as sort of a starting point. What that says – and broadly – trust me you don’t want to get into the details – is that information may be brought in as expert if it is in some way enlightening to the jury. And I think that’s a reasonable standard here.
“I think there’s a real danger of junk disclosure, where we’re giving out all sorts of information that’s just clogging up the tubes, which no one is ever going to look up, which isn’t relevant to anyone’s vote, and which is just a burden to people who have to do the disclosing.
“For instance, right now the PAC/Super PAC disclosure limit is $200. I simply don’t understand how $200 can be considered a corrupting amount of money given the scale of politics in this country. And I’m not sure who has ever benefitted from being able to look up the name and address and employer of someone who gave $200. I think that is just frankly junk that’s out there in the world and people can look it up. But it doesn’t actually move anything. It doesn’t change any votes. It’s not relevant to any of these standards the Supreme Court has put out there.
“As for when, this is the toughest one, in my view, for my side. I do see the point to – you know, we have an election in Iowa, and we’re not going to know who’s funding these ads until after the primary or after the straw poll or after whatever. That’s a fair point.
“I wonder how many people who say we need to have by-the-minute disclosure ever actually worked for a political committee or a political campaign…
“It really is an extremely difficult and burdensome process. And I think the reasonableness of a 24, 48-hour window, which is what we do on independent expenditures in this country, is manifest.
“And I’m not entirely clear on how you would go about getting around the problem if you’re looking to spend money or take in money the day before the election and then turn around in five minutes and post it online. That doesn’t strike me as the way you run a business or an organization.
“And similarly – and think this is almost as important – you know, you’re not only disclosing your donors; you’re also disclosing your spending. And you disclose your spending at the moment it becomes an obligation.
“So if you buy an ad and the ad is going to air the day before the election, you disclose it the day you bought it; you don’t disclose it the day before the election. The likelihood is that’s going to end up on a report.
“And somebody happens to give to the organization the day before the election, well you know, that money didn’t go for the ad that was getting aired that day. That money was already – that’s going to another election – it can be a continuing forward sort of fund.
“So I think in practice that’s less of a concern than people think it is. I think more of that spending is picked up than sort of the rhetoric would lead you to believe. But I’m sure we’ll discuss that in some detail.
“And finally, the question of where you disclose. I am all for online disclosure. I think not having searchable databases and having these terrible PDFs is horrid. There’s no excuse for that given the size of our economy and the amount we spend on all sorts of other ridiculous things. So I definitely think that that is common ground.
“Where we’re probably not going to agree – and this actually came up in the DISCLOSE Act and, I believe, is also in the bill that is currently being considered by the Sunlight Foundation – is the idea of the disclaimer that you actually put in the advertisement itself. Now everyone use these stand by your ad sort of languages where, you know, ‘I’m Allen Dickerson and I’m running for dog catcher of D.C. and I approve this message.’
“You know, maybe that has a certain role. I think in the area of independent expenditures it’s less helpful. Just for a few reasons. One is saying ‘I’m the candidate and I approve this whatever that has some content.’ Saying ‘I’m Crossroads GPS and I approve this’ doesn’t tell anyone anything. Which is why there’s always the next step. Which is okay, fine, it doesn’t tell you anything, so you include that.
“And this is an actual example from Massachusetts: ‘Here’s the organization who approved it. I’m the general counsel or chief executive officer or president or whatever and this is my name and I approved it. And here are our top five donors.’ Now, I don’t know how you’re supposed to fit that into a 15-second radio ad or 30-second TV spot or anything else. I mean, how do you get the micro-machines guys to show up and sort of say it really fast. Or none of that information is actually conveyed. What you’re doing is you’re just taking half of your air time that you’ve paid for, that’s a protected First Amendment activity and taking it right off the top, because you’re going to put in all this information that’s probably not going to change a single person’s vote in the Commonwealth of Massachusetts.
“And I very much look forward to the constitutional challenge that both there and in other localities. The idea that making that a federal standard I think would – well, it would do two things. One it would immediately make this a case before the D.C. circuit, which I think we would win. And two, it would really tie up a lot of people’s hard-earned money.”
- WhatTheFolly.com: Transcript: Eliza Newlin Carney on Citizens United & the influence of Super PACs
- WhatTheFolly.com: Transcript: Mimi Marziani on Citizens United & the influence of Super PACs
- WhatTheFolly.com: Transcript: Paul Ryan on Citizens United & the influence of Super PACs
- WhatTheFolly.com: More money, less transparency in U.S. politics after Citizens United
- Center for Competitive Politics: Allen Dickerson, Legal Director
- Supreme Court: Citizens United v. FEC (PDF)
- Sunlight Foundation
- Advisory Committee on Transparency
- C-Span.org: Video of the Sunlight Foundation’s panel on Super PACs (Jan. 23, 2012)