It’s been five years since the Supreme Court handed down its Citizens United decision. The ruling gave rise to a complicated mess of super PACs, dark money, and “coordinated non-coordinated expenditures” — a world that likely surprised even the Supreme Court. Viewers of Stephen Colbert’s late lamented “Colbert Report,” however, knew just how tricky this new world had become. In 2011, Colbert formed his own Super PAC. And he reported on the process every step of the way, explaining to viewers how the wacky post-Citizens United world worked (or, perhaps, didn’t work). I was his lawyer for the venture, which meant I did everything from drafting a Federal Election Commission Advisory Opinion Request to accompanying Colbert to hearings. I even figured out how to make the money “disappear” from public view when the PAC was closing. (Hint: It’s not that hard.)
At this five-year anniversary, here are four things I learned about how Citizens United and Super PACs have reshaped our elections and democracy:
1) No one — including Supreme Court justices and campaign finance lawyers — fully understood the breadth of the changes this decision would have on campaign fundraising and spending.
… 2) The Citizens United decision was based in part on the important assumption that all of the money being released into our elections would be disclosed. This has proven incorrect.
… 3) The court’s decision was based on another incorrect assumption — that the independent spending made possible by the decision would in fact be independent of candidates. Unfortunately, the court’s description of independent spending as “totally,” “truly” or “wholly” independent is a far cry from the narrow scope of activity the FEC considers “coordinated” and thus not independent.
… 4) The final takeaway from my work with Colbert was a sense of the enormous and detrimental impact Citizens United has had on our campaigns and elections.