Sen. Al Franken (D-Minn.) speaks at a news conference March 21 to announce… (Win McNamee / Getty Images )
Maybe because I have made the same point to my colleagues, I was impressed by a Washington Times report this week headlined “Decades-old law opened doors for big-money donors.”
The important words are “decades old.” The conventional wisdom is that the much-reviled Citizens United decision opened the way for sugar daddies Foster Friess and Sheldon Adelson to spend megabucks furthering the candidacies of Rick Santorum and Newt Gingrich, respectively. They do this through hefty donations to "super PACs," taking advantage of a federal appeals court decision that followed and cited Citizens United. Their largesse has inspired a generic lament about the outsize role wealthy individuals can play in elections.
But, as the Washington Times pointed out, wealthy individuals were able to make unlimited independent expenditures on political advertising long before Citizens United. In the 1976 Buckley vs. Valeo decision, the Supreme Court ruled that limits on independent election expenditures were unconstitutional. Friess and Andelson could have bankrolled ads favorable to their preferred candidates if Citizens United had never happened. They just would have had to eliminate the middleman and fund the ads themselves.
Strangely, according to the Washington Times, moguls didn’t take much advantage of the opportunity. Why not? “The fact that the wealthy businessmen now funding independent ads have long been permitted to do so, yet rarely did, indicates an extraordinary desire to remain behind the scenes.” The story quoted Bill Allison of the Sunlight Foundation, who noted: “The thing with individuals buying an ad themselves is you’re putting yourself out there as the person behind it. You’d have to have a message saying, ‘This ad is brought to you by Bob Smith.’ ” But this isn’t a totally satisfying explanation because individuals who donate to super PACs are eventually outed, as Friess and Adelson were.
In any case, the fact that Mr. Moneybags can fund commercials to his pocketbook’s content means that you would have to do more than reverse Citizens United to stop the “disproportionate” influence of wealthy individuals. Some campaign reformers are willing to go that far with a constitutional amendment that would overturn both Citizens United and Buckley. But remember: The central argument against Citizens United was that corporations and unions aren’t people (=individuals) so it’s kosher -- despite the 1st Amendment -- to prevent them from spending on political ads. Friess and Adelson are citizens of the United States, a polity that allows inequalities of purchasing power for all sorts of commodities.
Ah, say the reformers, some citizens shouldn’t have more of a say in political debate than others, any more than some people should be allowed to vote multiple times. This is the “level playing field” theory of political speech that was rejected in Buckley, not to be confused with another rationale for limits on political expenditures: the danger of quid pro quo corruption.
But I wonder if advocates of overruling Buckley have thought through the implications of saying that every individual, rich or poor, should exercise the same measure of influence over political debate. Wouldn’t that also require that there be limits on how much individuals can contribute to ideological think tanks? And what if Citizen No. 1 has the money to hire a top-notch ad agency to produce his political commercials, while Citizen No. 2 must rent a video camera and do the ad himself? Should No. 2 get a subsidy so that his message is as professionally produced as No. 1’s? Amending the Constitution to level the playing field could be a lot of work.