Nexus: Chapman's Journal of Law and Public Policy

As I am writing this we are currently in the aftermath of the November 2, 2010 election. With the clock ticking down to the final minutes, political campaign ads were everywhere. This election season has seen a tremendous amount of ads attacking the candidates and issues on the ballot. It is difficult to remember the amount of campaign ads from just two years ago but it seems as though this election had more campaign ads and more attack ads then ever before. I could not turn on the television without being bombarded by ads threatening the end of civilization as we know it if we elect X or pass proposition Z. Well, perhaps I am exaggerating a little, but these ads were just ridiculous and annoying. At the end of the day who can tell which side is lying and which side is telling the truth? Is there any truth? Are both sides just really awful? Remind me what is the issue? According to a recent article in the Los Angeles Times, since September 1, 2010 50% of Democratic ads and 56% of Republican ads attacked their opponents – the highest level in a decade. It is believed that more than $4 billion was spent on this campaign, which is an unheard of sum. In comparison, about $1 billion was spent in the 2006 mid-term election. Here, in California Meg Whitman, the Republican gubernatorial candidate spent around $141.5 million of her own money to support her bid as the next governor of the state–again an unprecedented amount of money for a candidate running for that position. These tallies are astounding on their own but are even more astounding in light of our current economic situation. It is amazing that these huge sums of money are being spent yet people are still losing their jobs and our country and our state are at a huge deficit.

While the money spent on campaigning is very interesting I really want to focus on the more narrow issue that emerged in part due the Supreme Court’s decision in Citizens United v. Federal Election Commission, the case that held corporate and union spending on electioneering communications is a form of political speech protected by the First Amendment. The Citizens United case effectively lifted the ban on corporate spending for political campaigns by third parties, so now not only are the candidates putting out attack ads against their own opponents but a variety of “independent” or third party interest groups have sprung up that are putting out attack ads of their own. Many of these groups that put out ads are 501c4 and PAC organizations. 501c4’s get their name from the section of the Internal Revenue code under which they are formed. Unlike 501c3s which most people recognize as your regular run of the mill charitable organizations or non profits that are prevented from participating in political activity, 501c4s can engage in political activity such as campaigning or lobbying, so long as that is not their primary purpose. Their primary purpose under the code is supposed to be social welfare.

Estimates of how much these outside groups have spent range from between $193 to $445 million during this election season. In addition to unlimited spending, these organizations do not have to disclose the source of their money. Further, since most of these organizations go by nondescript names it is very difficult to figure out who is really behind the attack ad. NPR highlighted just such a story last month on their show All Things Considered. Reporters accompanied Democratic congressional incumbent Peter DeFazio as he tried to track down who was behind an attack targeting him in his home state of Oregon. The attack ad was put out by an organization calling themselves “The Concerned Taxpayers for America.” The organization listed their address as a place in Washington, D.C. DeFazio went to the address, which turned out to be a townhouse, and spoke to a reluctant person inside. This person was later identified as the treasurer of the organization. From the looks of it “The Concerned Taxpayers for America” might not even be a real, well-organized group, they might just be a couple of individuals who want to influence the outcome of the midterm election and are using the organization as a façade to shield themselves from the public eye.

One of the biggest corporations that have emerged during this election is Crossroads Grassroots Policy Strategies (Crossroads GPS), which is a spinoff of American Crossroads, a conservative group aimed at helping Republican candidates run for office. The group, which was started by Karl Rove, is estimated to have spent around $18 million on this campaign. Since Crossroads GPS is a 501c4 they do not have to disclose where those millions came from. Crossroads GPS has run attack ads in Illinois, Pennsylvania, California, and Kentucky. So now, not only do I have to endure attack ads from the candidates themselves in my state, I have to endure attack ads by outside groups who are trying to influence the outcome of the election.

In addition to the annoyance I feel about the flood of campaign ads, the real problem with not knowing where the money is coming from is that the public is not informed about who is running for office. When we do not really know who is behind the ad is we cannot decipher their special interests. Some have argued that a large reason why big donors want to remain unknown is because they do not want to alienate the opposing candidate if their pick is not elected. This does not seem like the way our political system should be running. Donors should not be allowed to donate huge sums of money, hide behind nondescript “social welfare” organizations, and then act like it never happened if their candidate does not make it into office. We need full disclosure! If a person or corporation wants to spend thousands or even millions of dollars to support a candidate the public should know about it. One answer to this problem is the Disclose Act which was touted as a way to prevent unregulated corporate and union influence over elections. However, the Disclose Act twice failed to pass in the Senate and now, as the results of the election trickle in, Congress seems even more divided indicating that it will not be passed any time soon. By the time the next election comes around we need to figure something out.

Sources: http://www.npr.org/templates/story/story.php?storyId=130291350 http://www.opensecrets.org/capital_eye/citizens.php