Salon is out with an interview today with Floyd Abrams (noted First Amendment lawyer and campaign finance law opponent). Abrams took the NY Times to task for blaming the $5 million Adelson contribution to Super PACs on Citizens United. Abrams says it is Buckley v. Valeo, recognizing an individual’s right to spend money on elections, not Citizens United, which is responsible for the emergence of Super PACs. That’s not the whole story, and misses the relevance of Citizens United.
Here are the main points.
1. Before Citizens United, individuals could indeed spend unlimited sums on independent advertising directly supporting or opposing candidates. But that money had to be spent by the individual directly. It could not be given to a political action committee, which had an individual contribution cap of $5,000 and could not take corporate or union funding. In many cases, wealthy individuals did not want to spend their own money on advertising, which would say “Paid for by Sheldon Adelson” or “Paid for by George Soros”, so fewer of these ads happened. And corporations or unions could not play in this way.
2. Before Citizens United, an individual who wanted to spend money to influence a federal election but who did not want his or her name plastered across every ad sometimes gave to groups which came to be known as “527s” (for a particular provision of the tax code). 527s claimed they could take unlimited money from individuals (and sometimes claimed a right to corporate and labor union money) on grounds that they were not PACS under the FEC definition of PACs. These 527s were somewhat successful (George Soros gave $23 million to try to help pro-Kerry 527s in 2004 get Kerry elected), but a legal cloud always hung over them. I remember well when Bob Bauer, then candidate Obama’s lawyer, barged in on a pro-Hillary Clinton conference call to say that people giving to 527s to support Clinton could face criminal liability.