Transcript: Mimi Marziani on Citizens United & the influence of Super PACs
Transcript of remarks by Mimi Marziani, Counsel for the Democracy Program at the Brennan Center for Justice at New York University School of Law, on Super PACs at a panel hosted by the Sunlight Foundation on Jan. 23, 2012:
“So obviously, most of our conversation today is forward-looking as we grapple with the very important question that Super PACs have raised about whether they should be regulated, how they should be regulated, and in fact whether basic assumptions underlying our campaign finance system make any sense.
“But before we can fully grapple with these questions, I’m here to push us back a little bit and look behind us and make sure that we all understand where these Super PACs came from, and the legal theories and assumptions underlying them.
“So I’m going to give you a little bit of a creation tale. It won’t be too long, I promise.
“Although things actually started in 1976 with the Supreme Court’s decision in Buckley v. Valeo. Even though this decision is now somewhat dated, its main pillars remain the law today. And there are three points that are particularly important for the instant discussion.
“First, the Buckley court found that because money is needed for most forms of mass communication, restrictions on political spending should be heavily scrutinized just like restrictions on pure speech. And it’s important to note this is not actually saying the same thing as money is speech, although that’s the shorthand that has come from the decision. But it has the same practical effect. Meaning that the government must have a very, very, very good reason to regulate political spending.
“The court in Buckley then went on to decide that preventing corruption is basically the only very, very, very good reason the government can put forward some limits [to] political spending.
“And finally the court decided – without cited to any evidence or really talking much about the realities of political campaigns – the Buckley court decided that direct contributions to candidates post a much greater risk of political corruption than independent spending that is meant to benefit the candidate.
“And the court specifically said, and I’m going to quote the Buckley decision for a second that ‘the absence of prearrangement and coordination of an expenditure with a candidate not only undermines the value of the expenditure to the candidate, but it also alleviates the danger that the expenditure would be given as a quid pro quo for improper commitments from the candidate.’
“And so with that reasoning the Buckley court upheld contribution limits, limits on direct contributions to candidates, but struck down limits on how much an individual could spend to benefit a candidate.
“So fast forward to 2010 and the Citizens United decision. So this decision – as everybody in this room surely knows – is best known for its holding, namely that it is unconstitutional to prohibit corporations from using general treasury funds for electioneering.
“The court, however, also discussed independent spending in an aspect of the decision that is frequently overlooked. And the Citizens United court, in fact, expanded the logic of Buckley significantly. And it proclaimed – again without looking at any factual evidence – that truly non-coordinated expenditures ‘do not give rise to corruption or the appearance of corruption.’
“And so in other words – to give a concrete example – this is the same as saying that a multi-million dollar campaign ad blitz funded by, let’s say, BP Oil to benefit members of the Energy and Commerce Committee does not pose any sort of threat of political corruption so long as BP decides to spend that money without consulting with the candidates.
“With this, however, the court assumed that there was robust transparency that would also act as a mechanism to prevent corruption.
“Three months after Citizens United was decided – actually two months after Citizens United was decided, the D.C. Court of Appeals decided a case called SpeechNow. And I promise I’m getting to the point.
“Here the big question was presented. The plaintiffs in that case said, ‘I’m a PAC, a political action committee. I only want to spend money on independent expenditures. I’m not going to coordinate – under the campaign finance rules – with any particular candidate. Therefore, it is unconstitutional for the government to still restrict the money coming into my organization.’
“So the argument goes, there’s no anti-corruption benefit to restrict the money coming in if the money coming out is per se non-corrupting. The court agreed and tossed the limits on contributions to these types of PACs aside.
“And so from this decision, the FEC created a new category of entity – and you might have heard this term already but I kind of love to say it – the independent expenditure only multi-candidate non-connected PAC, which obviously is a mouthful and I believe was re-coined by our friend here [Eliza Newlin Carney] as the Super PAC…
“But from that creation story as it is, I just want to underscore three particularly troubling assumptions that Super PACs are based upon.
“One is this idea that independent expenditures are non-corruption. I mean, this notion is quite frankly ludicrous to anybody who’s ever dealt with the realities of our political system. I mean, I think it belays all logic to think, for instance, that an individual could give $5 million to my closely affiliated Super PAC – I know all about it. That infusion of money is, let’s say, given to me at a critical moment in my campaign and necessary for me to achieve a key win. It is crazy to think that I will not feel indebted to that individual in some way.
“The second fallacy is this notion that the coordination rules are sufficient to prevent true coordination – the way that you and I understand coordination…
“And then finally, as Eliza highlighted, the third fallacy is this idea that the current disclosure regime is sufficient to capture this new influx of political money.
“And I’m going to end – illustrating that, I think, the best is Stephen Colbert…
“As many of you probably know, comedian and genius Stephen Colbert has been illustrating some of the kind of ridiculous aspects of the current regime by creating a Super PAC, and he created an affiliated 501(c)(4) named the Colbert Super PAC Shhh for the purpose, of course, of accepting donations that never have to be disclosed and then can be shifted to the Super PAC.”
- WhatTheFolly.com: Transcript: Eliza Newlin Carney on Citizens United & the influence of Super PACs
- WhatTheFolly.com: Transcript: Paul Ryan on Citizens United & the influence of Super PACs
- WhatTheFolly.com: Transcript: Allen Dickerson on Citizens United & the influence of Super PACs
- WhatTheFolly.com: More money, less transparency in U.S. politics after Citizens United
- C-Span.org: Video of the Sunlight Foundation’s panel on “Influence of Super PACs” on campaign 2012
- Brennan Center for Justice: Mimi Murray Digby Marziani
- Cornell University Law School Legal Information Institute: Buckley v. Valeo (No. 75-436)
- Internal Revenue Service: Political organization filing and disclosure
- Sunlight Foundation
- Advisory Committee on Transparency
- Supreme Court: Citizens United v. FEC (PDF)
- Colbert Super PAC’s website
- Federal Election Commission: Campaign finance reports and data
- Internal Revenue Service: Political organization filing and disclosure