Transcript: Paul Ryan on Citizens United & the influence of Super PACs
Transcript of remarks by Paul Ryan, FEC Program Director and Associate Legal Counsel at the Campaign Legal Center, on Super PACs at a panel hosted by the Sunlight Foundation on Jan. 23, 2012:
“I’m going to talk a little bit about some of the broader legal concerns at play when you’re talking about disclosure and transparency.
“As Mimi [Marziani] and Eliza [Newlin Carney] both explained, one of the major things coming out of the Supreme Court’s decision in Citizens United was the declaration by our Supreme Court – by five justices – that independent expenditures don’t corrupt or can’t corrupt.
“But one of the promises made by the court – promise might be too strong of a word – but one of the suggestions strongly made by eight of the court’s nine members was that disclosure and transparency would be an antidote to any potential corruption from this flood of corporate and, by extension, union money that would be coming into our election system.
“So eight of the court’s nine justices signed down to a section of the opinion that stated, for example, ‘A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today.’
“Later in the same paragraph, they went on to write, ‘With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.’
“Skipping ahead to the end of that same paragraph, the court concluded, ‘The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.’
“So eight of the court’s nine justices strongly stood behind disclosure. And this wasn’t the first time. In fact, eight of the court’s nine justices have been strongly behind disclosure in all of the court’s recent disclosure-related decisions.
“Eight of the court’s nine justices in 2003 in the McConnell [v. FEC] decision that upheld the Bipartisan Campaign Reform Act (BCRA) also stood firmly behind disclosure. The only justice on the court who has not supported disclosure is Justice [Clarence] Thomas.
“And also very recently, in a case out of the state of Washington, called Doe v. Reed, which was not pertaining to disclosure of money in elections. It was pertaining to the disclosure of the identities of those who sign petitions to get measures on the ballot. In that case, Doe v. Reed, eight of the nine justices again stood behind disclosure and upheld the law.
“And I want to read to you a very short passage from Justice [Antonin] Scalia’s concurring opinion in that decision because it is perhaps the most strongly-worded endorsement of disclosure that I’ve heard coming from a Supreme Court justice.
“Justice Scalia wrote, ‘There are laws against threats and intimidation, and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self governance. Requiring people to stand up in public for their political acts fosters civic courage without which our democracy is doomed. For my part, I do not look forward to society, which thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of an initiative or referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the home of the brave.’
“So that’s the backdrop here – the legal backdrop. We have a very consistent eight justice majority in the United States Supreme Court behind transparency and disclosure in our elections.
“But as Eliza explained very accurately, we have a major deficit of disclosure in this year’s election.
“Why is that the case? Well, Eliza touched on the main points. One is that while indeed it is true that Super PACs have to disclose all of the money coming into those Super PACs, the entire universe of possible and legal donors to these PACs changed with Citizens United and SpeechNow, more specifically, that came a couple of months later. So for the first time in decades, it became legal for entities, for groups, for corporations to make unlimited contributions to these Super PACs.
“What we may see at the end of this month – when most of the Super PACs that had been created for this election cycle have to file their first comprehensive reports – is filing of reports that state that a particular Super PAC received $1 million from ‘Americans for Apple Pie.’ And that is made possible by Citizens United combined with SpeechNow.
“Prior to these cases, prior to these decisions, corporate entities, say ‘Americans for Apple Pie’ – a hypothetical 501(c)(4) – would have been illegal for it to contribute to any federal political committee. Now they can contribute, and that’s all that will have to be disclosed by a Super PAC because 501(c)(4)s, as Eliza explained, themselves do not have to disclose where they get their money unless the donor is foolish enough to specifically designate their contribution to that (c)(4) for the purpose of making electioneering ads or independent expenditures or electioneering communications.
“This particular deficit in disclosure – the fact that (c)(4)s only have to disclose when they make electioneering communications. They only have to disclose donors if their donors specifically designate their money for electioneering communications. That is a creation of our very, very dysfunctional and completely gridlocked Federal Election Commission.
“So there are a couple of players in this game that have gotten us to this point. The FEC has played a big role, and the Supreme Court despite its promises that we will have disclosure and that will prevent corruption and that will allow voters to make informed decisions in the voting booth and allow voters to hold corporations accountable. I don’t think we’re going to have that much information in this coming election about the true sources of money going to these Super PACs, even though they nominally disclose all the money that they raise and spend.
“I just want to mention a couple of possible ways to get at this problem.
“And before doing so, I’ll also mention that there’s a countervailing interest here – public interest, government interest – that I’m confident that Allen [Dickerson] will talk more about.
“It is indeed true that the Supreme Court had said over the decades – in the context of the disclosure cases – that if a particular donor to a political cause would suffer threats, harassment or reprisals as a result of them being disclosed, they should be exempt from having their names being disclosed. But this is an exemption from disclosure that evolved in the context of the Socialist Workers Party, NAACP. We’re talking about extreme violence being – victims of extreme violence and often discrimination and threats and harassment and some reprisals at the hands of government itself. So we’ll probably hear more about that.
“But brief mention of some of the ways that the new Super PAC Disclosure Act that the Sunlight Foundation has just announced last week – very similar to the provisions that were in the DISCLOSE Act that passed the House but failed a close cloture vote in the Senate in 2010.
“One of the ways that they would get at what one might refer to as the ‘Russian doll’ problem – that is to say, ‘Yes the Super PACs are disclosing but they’re getting money from another group, and we don’t know who the money came from that went into that group.’ In this new model, the Super PAC Disclosure Act and in the DISCLOSE Act that narrowly failed to pass enactment, there were some new concepts that would have been or could be in the near future…and that is to build in some presumptions that if someone gives money to the spender, and either that spender solicited that money – specifically telling the donor that they would use it to make independent expenditures or electioneering communications – that donor should be disclosed.
“If there were substantial discussion between the spender and the donor, the true source of the funds, about the fact that the money would be used for election ads, that donor would be and should be disclosed.
“If the donor had knowledge that the money was going to be used by the spender for political ads, that donor should be disclosed.
“And finally, if the recipient of the money that’s making these expenditures, if they have made substantial expenditures in past election cycles that would put the donor on notice that their money would likely be used again for political expenditures, that donor should be disclosed.
“They’re some of the concepts that presently are not in our law but are really worth taking a close look at and considering putting into our disclosure laws.”
- 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: Allen Dickerson on Citizens United & the influence of Super PACs
- WhatTheFolly.com: More money, less transparency in U.S. politics after Citizens United
- The Campaign Legal Center: Paul Ryan, FEC Program Director and Associate Legal Counsel
- Supreme Court: Citizens United v. FEC (PDF)
- FEC.gov: Bipartisan Campaign Reform Act of 2002
- Cornell University Law School Legal Information Institute:: McConnell v. Federal Election Commission
- Cornell University Law School Legal Information Institute:: Munro v. Socialist Workers Party
- Cornell University Law School Legal Information Institute: Buckley v. Valeo (No. 75-436)
- SupremeCourt.gov: Doe v. Reed (PDF)
- H.R. 5175: “Democracy is Strengthened by Casting Light on Spending in Elections Act”
- Sunlight Foundation
- Advisory Committee on Transparency
- C-Span.org: Video of the Sunlight Foundation’s panel on Super PACs (Jan. 23, 2012)