Maybe Justice Kennedy was right in Citizens United? More speech is better?

February 17th, 2012

Dave Weigel argues that perhaps super PACs have improved the 2012 election:

Unfortunately for the cause, it’s getting harder to argue that super PACs have horribly degraded our elections. In this first presidential election since the dawn of the supers, they have actually—and probably by accident!—given us a more competitive, transparent Republican primary. They are, in a sense, a good thing for our democracy.

The super PAC critics aren’t moved by the election results: The PACs are rotten and unfair. In the words of Democracy Now producers, the PAC money comes from a “secretive coterie” of donors. In the terrific coinage of Mother Joneseditors, it’s “dark money,” a Lovecraftian monster that moves from state to state, dissolving the foundations of the republic.

It is too secretive. Most campaign money is. But here’s the twist: There’s more information out there about super PAC donors than there is about virtually any other kind of campaign fundraising. Maybe it’s the novelty, maybe it’s the size of the checks, but the rise of the super PAC has come with constant, clickable scrutiny from the Fourth Estate. . .  .

Our super PAC education, so far, has consisted of fat checks matched with information about the check-cutters. We know more about those guys than we know about the bundlers, who’ve been passing money under the table for years. So which of those systems is worse for our democracy?

But Justice Thomas, who opposed requiring disclosures, was wrong, I reckon?

Update: And just now, Lyle writes that the Supreme Court released an order granting a stay of the Montana Supreme Court case, which flatly ignored Citizens United.

Justice Kennedy wrote:

The application for stay presented to Justice Kennedy and by him referred to the Court is granted, and the Montana Supreme Court’s December 30, 2011, decision in case No. DA 11-0081, is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this Court.

Justices Ginsburg and Breyer had a bit to say also (they probably do not agree with Weigel). But notably, not Sotomayor or Kagan.

Statement of Justice Ginsburg, with whom Justice Breyer joins, respecting the grant of the application for stay. Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Id., at ___ (slip op., at 42). A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.

Update: WSJ Editorial makes a similar point to Weigel:

Sheldon Adelson and Foster Friess by now are nearly household names. The multimillion-dollar cash infusions from the casino tycoon and champion stock-picker have kept the respective campaigns of Newt Gingrich and Rick Santorum alive. Prevented by campaign-finance rules from giving more than $2,500 directly to the candidates, their donations to Super PACs have paid for TV ads that let the candidates respond to charges leveled by Mitt Romney’s campaign. In previous years, Mr. Romney’s fund-raising advantages might have ended the race after New Hampshire.

The Super PACs have run negative ads—hardly unheard of—but one voter’s attack ad is another’s piece of new information. Mr. Gingrich’s work for Freddie Mac and Mr. Romney’s Massachusetts health-care plan are frequent targets. Paypal founder Peter Thiel seems to be playing Stewart Mott to Ron Paul’s Eugene McCarthy of 1968, supporting an issues candidate to promote a cause.

Mr. Obama’s first campaign commercial in January denounced “secretive oil billionaires,” who apparently aren’t secretive enough to prevent Democrats from figuring out where their money comes from. But he’ll find his own billionaires now that he’s endorsed Priorities USA Action, the Super PAC run by his allies.

The reason we know who these people are is that Super PACs are required by law to file disclosure reports with the Federal Election Commission. There are other political groups organized under section 501(c)4 of the tax code that don’t disclose their donors. But most of them are traditional political nonprofits like the National Rifle Association, AARP, the Club for Growth, Planned Parenthood and hundreds of others that have never opened their books. If the goal is transparency, Super PACs are an improvement.

So, Justice Thomas is still out.
Update: And this–the Super PACs are keeping Gingrich, Santorum, and Paul in the race well beyond their expiration dates:

Candidates who run out of money usually drop out quickly, clearing the path to a binary choice. But the millions of dollars being funneled into “super PACs” supporting Newt Gingrich as well as Mr. Santorum are keeping them in the race.

In addition,Ron Paul’s fervent supporters continue to pump money into his movement; Mr. Paul has repeatedly pledged to stay in the race until the national convention in August.

“Normally, you beat a candidate, he loses momentum, he loses the ability to raise money, and the candidate dies,” said Stuart Stevens, a chief strategist for Mr. Romney. “We show up in these races, and we try to win. That’s all you can do.”

Without the Super PACs, Romney would have sealed the nomination some time ago. Would we better, or worse for it?