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Citizens United: Before, After, What’s Next?

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The Citizens United case was a game changer in terms of money being spent by outside groups on the 2010 elections—but the question is, how much? This primer (included below) provides a detailed explanation of the before and after, and also includes Sunlight’s policy recommendations for new disclosures needed to ensure that that the midterms don’t become a practice run for even more massive spending in 2012. It’s complicated, but boiled down to its essentials, the key points are these:

• Before Citizens United, if a corporation or labor union wanted to make an independent expenditure—an ad expressly calling for the election or defeat of a specific candidate—it was prohibited from using money from its general treasury. It had to use limited voluntary contributions from its PAC.

• After Citizens United, corporations and labor unions can use unlimited general treasury money to explicitly call for the election or defeat of a candidate.

• Before Citizens United, Super PACs didn’t exist.

• After Citizens United, Super PACs (also known as Independent Expenditure Only Committees) sprouted up and can act as conduits for massive, hidden corporate or union contributions to ads calling for the election or defeat of candidates.

• Before Citizens United, there were laws that, while weak, could have been used to sanction groups when they spent undisclosed corporate funds on “electioneering communications”—those ads that, more often than not, criticize a candidate but stop just short of explicitly telling the viewer to vote for or against the candidate.

• After Citizens United, groups have the green light to make electioneering communications, paid for with unlimited corporate funds, with no risk and no disclosure of the true funders of the ads. Groups that had been on the sidelines were emboldened to start spending huge sums on election-related ads.

The result is that outside groups have spent $259 million so far this election season. The real donors behind the spending are mostly a deep dark secret to you and me, but make no mistake—these are not anonymous contributions, they merely are not disclosed to the public. If a corporate interest funneled a million dollars to a sham nonprofit organization that runs ads that helped get Congressman Smith elected, the lobbyist for that corporation will make sure Congressman Smith knows about it. It may not be as opaque as the pre-Watergate brown bags of cash, but it is similarly corrupting.

While the Citizens United case contributed to the mess, it’s up to Congress to clean it up. Despite the failure to pass the DISCLOSE Act before the midterms, Congress must quickly revisit this issue of disclosure of third party spending so that voters know who is paying for campaign ads. The Citizens United court itself supported disclosure and disclaimer requirements by a vote of 8-1, noting that they “do not prevent anyone from speaking.” Moreover, they facilitate the ability of a listener or viewer to “evaluate the arguments to which they are being subjected.”

Any new legislative effort should focus with laser-like precision on disclosure and disclaimer provisions that will make it clear exactly who is paying for campaign related expenditures.

Hidden Money in the 2010 Elections Final