The other day I linked to Matt Bai’s iece upcoming in Sunday’s NY Times Magazine, “How Much HasCitizens United Changed the Political Game. The article discusses (though inexplicably does not link to) my recent Slate article, “The Numbers Don’t Lie.” I promised a response to the article (I gave Matt an extensive interview in his writing of the piece), and here it is. The relevant question is whether Citizens United and its aftermath (namely, the decision in SpeechNowfrom the DC Circuit, and two FEC rulings) is responsible for the explosion of outside money sinceCitizens United. A few reactions, beginning with the most important.
1. As I told Matt, and what’s missing from this piece, is the realization that there was considerable legal risk in giving to a 527 before Citizens United and its aftermath. As one reader to commented to me, “Matt’s article suggests that not much has changed post-Citizens United because even prior to the CU decision, “you would have been free to write a check for any amount to a 527 . . . .” This is untrue and all three groups Matt cites were determined by the FEC to have violated federal law during the 2004 cycle. ACT paid a $775,000 fine (http://www.fec.gov/press/press2007/20070829act.shtml). SwiftVets paid a $299,500 fine (http://www.fec.gov/press/press2006/20061213murs.html). Club for Growth paid a $350,000 fine (http://www.fec.gov/press/press2007/20070905cfg.shtml).”
If Sheldon Adelson really was planning on giving $100 million to 527s before the Citizens United revolution to support a presidential candidate, you can bet that there would be a criminal investigation and very serious charges considered. i have serious doubts Adelson or anyone else would have risked this (much less corporations giving considerable sums to 501c4s for election-related activity). Now we can debate (and I have debated with others) whether the law barring contributions greater than $5,000 to independent expenditure committees would have fallen even if CU had come out the other way. But that’s a different point than the one Matt was making.
There’s no reason to think we’d see this explosion of outside money if CU did not start this cascade of events.