Tuesday, January 21, 2014
I have made a habit of posting papers debating various aspects of the post-Citizens United (pre-McCutcheon?) world of campaign finance under the First Amendment. Last week, I posted Outside Influence by Professor Anthony Johnstone, in which he explores the possibility of states and local communities regulating outside campaign spending through the "structural constitutional principles of political community"; and, yesterday, in The Last Rites of Public Campaign Financing?, Professor James Sample ponders the apparently desolate future landscape for proponents of campaign public financing. The title of today's campaign finance contribution is also the title of this post. In In Defense of 'Super PACs' and of the First Amendment, Professor Joel Gora argues that Super PACs are not actually the "threats to democracy" claimed by their opponents, but rather they serve as a "[boon to] speech and debate in our political process[.]" Here's the abstract:
This article is a defense of “Super PACs” and of the First Amendment principles that they embody, namely, that we need a robust, wide-open and uninhibited discussion of politics and government in order to make our democracy work. Like the famous Citizens United ruling in 2010, Super PACs have gotten a bad press and have been widely condemned as threats to democracy. But Super PACs are really nothing new. They trace their origins back to Buckley v. Valeo, the Supreme Court’s landmark 1976 free speech ruling which rejected any justification for limiting the independent expenditures for political speech. Thus, the day after Buckley, individuals and groups were free to spend whatever they wished to support or oppose political candidates. Whether they were allowed to join together for such purposes was less clear. But Citizens United removed any lingering doubt by holding that any speaker – individual, corporate, union, non-profit – was free to make independent expenditures without prohibition or limitation. Based on those principles, a federal appeals court easily and unanimously ruled that what one person or group could do individually, several people or groups could do cooperatively, namely, pool their resources to get out their common message. That is a Super PAC.
As a result, Super PACs played a noticeable role in the 2012 federal elections. But despite popular misconception, they did not dominate or control those elections, accounting for only 10 percent of the campaign spending, almost all contributions to them were fully and publically disclosed, and almost no corporations played any role in any such Super PAC spending. Indeed, so far as is known, extremely few Fortune 500 companies have contributed to support a Super PAC. Rather, Super PACs enabled more speech and debate in our political process, a result to be desired most significantly under the First Amendment. So, rather than being a threat to democracy, Super PACs have been a boon.
CRL&P related posts:
- Old School/New School Speech Regulation
- Abrams's unsatisfying WSJ column on the 'most indefensible First Amendment ruling' this century
- California law enforcement arrest operator of revenge porn site
- Remembering Tinker: The right to vote as expressive conduct
- Facebook "like" and First Amendment protection for the right to vote