Originally Published as Web Exclusive: December 20th
In the rush to anoint corporate interests the crown prince of the 2010 midterm elections, many missed the races in which Citizen’s United vs. FEC decision had little effect. In Rhode Island, the ramifications of the January 2010 Supreme Court decision may have been mostly psychological. Feeling perhaps that the Federal Election Commission’s reigns had loosened, several 527 groups--whose rights were not changed by the decision--ramped up spending considerably.
In the US House Dist. 1 House race for Patrick Kennedy's old seat, 527 groups aired the same sort of advertisements that they could have, but didn’t, in 2008. In the contentious and vastly more expensive three-way Governor’s race, the big spenders were also 527s.
But the groups empowered by Citizen's United spent a little under $265,000 and it came almost entirely from organized labor. If the Supreme Court decision was politically motivated, its effect in Rhode Island probably wasn't the desired one.
What Citizen's United Meant Nationwide
The Citizen’s United decision accomplished three things: it allowed corporations, unions and trade organizations (like the US Chamber of Commerce) to use advertisements to directly call for the election or defeat of political candidates all the way until the election. It also allowed 501c (4) groups, nominally “social welfare organizations” to do the same. Prior to the decision, 501c (4)'s had not been allowed to “electioneer,” or advertise within 60 days of general elections and 30 days of primaries. Finally, the decision did away with all existing spending caps on independent expenditures.
What it didn’t do was change the status of 527 organizations (remember Swift Boat Veterans for Truth?)—and nationally, these were the heaviest hitters overall, making their presence felt mostly in gubernatorial elections.
In Rhode Island, the three most visible advertisers from September until the November election, besides the candidates themselves, were three 527 groups and the Rhode Island branch of a national teacher's union, the National Education Association.
The most prominent 527 groups were the Democratic Governor’s Association, the Republican Governor’s Association, and conservative group Americans for Common Sense Solutions. One of the main confusions over the capabilities of increasingly emboldened 527s lies in a conflation of Citizens United with the oft-overlooked 2007 Supreme Court Decision Wisconsin Right to Life vs. Federal Election Commission. In the 5-4 decision, Chief Justice John Roberts delivered the majority opinion that political advocacy groups like 527s could electioneer with corporate and union funding and mention the name of a political candidate so long as the spot was an “issue ad,” and didn’t directly tell the voter to vote or not vote. This provision was a direct reversal of a provision of the 2002 Bipartisan Campaign Reform Act (BCRA) better known as McCain-Feingold.
Defying Common Sense
In September, one local 527 in particular, Americans For Common Sense Solutions, began airing ominous, grainy, attack ads that helped create an informal media consensus that it was a “shadowy” group empowered by the Citizen’s United Decision. Aired in the run-up to the House election for the First Congressional District, the group’s most misleading advertisement charged Mayor David Cicilline with striking down “Megan’s Law,” which helps monitor sex offenders. The charge, though not untrue, did not clarify that Cicilline signed a better version of the law weeks later. In a November 21st Providence Journal expose Mike Stanton and W. Zachary Malinowsky wrongly wrote that “thanks to a controversial U.S. Supreme Court decision in January, Citizens United vs. the Federal Elections Commission, 527 groups could now finance ads that identified a particular candidate close to the election.”
In this case, ACSS actually had Wisconsin Right to Life vs. FEC to thank. Prior to that decision, if 527s wanted to electioneer they had to do it exclusively with funds from individuals. During the 2004 campaign, prior to Wisconsin, $140 million of the 527 funding came from just 25 super-rich individuals. In other words, Wisconsin and Citizen’s may have given some voice to non-profit corporations and unions which might have otherwise have been drowned out by astronomically wealthy individual donors on both sides of the aisle.
Had ACSS wanted to advocate directly for the election of one or the other candidate (e.g. “Vote for Loughlin. Why? Because Cicilline’s a Creep!”) it could have renounced its 527 status. In doing so, however, it would have also lost its tax-exempt status. 527s, because they were unaffected by Citizen’s United, must stick to “issue ads,” though as ACSS and others demonstrated, the “issue” in question is often a stand-in for direct advocacy.
The Stanton Projo piece on ACSS reported that the group raised close to $300,000 and has plenty of money in the coffer to build another run for 2012. Based on my tally of how much it spent at two of Rhode Island's four biggest television stations, ACSS probably spent around $53,000 on total, though one can't be sure because the organization's IRS filings are still incomplete. The point is: strictly in terms of money spent buying ads, ACSS didn’t come close to matching the spending of the Democratic Governor’s Association and the Republican Governor’s Association. The "shadowy" villain of the 2010 local elections was overshadowed by the big spenders, though again, neither had Citizen's United to thank for it.
The RGA Tour
Nationwide, the Republican Governor’s Association spent $128,899,211 in 2010. According to www.opensecrets.org, $58.6 million of that went towards advertising, or “independent expenditures.” That’s the most money spent of any other group, corporation, 527 or otherwise in the country. The next closest, at $32,925,647, was the US Chamber of Commerce, an organization freed up to fund ads by Citizens. Crossroads GPS, the 501c(4), backed by Karl Rove and Ed Gillespie spent $16,675,957.
This year, the RGA almost tripled what they spent in 2008. This was due not to Citizen’s United but mostly because only 11 Governorships were up for grabs that year, compared to 37 this year.
In Rhode Island, the RGA spent $475, 512.67. Last gubernatorial election, in a two-man race between incumbent Republican Donald Carcieri (who won) and Democrat Charlie Fogarty, the RGA spent $620,000 on attack ads against Fogarty. The lower spending in 2010 is due most likely to GOP candidate Robitaille’s underdog status in the three-candidate race.
The Democratic Governor’s Association spent more than double than the RGA in the Ocean State—$1,034,172—on Frank Caprio, the man who effectively disqualified himself from the three-man governor’s race with an ill-advised talk radio “shove it” towards Barack Obama.
The Real Shadowy Groups
Perhaps the most significant change brought by Citizen's United was the empowerment of 501c (4) groups to electioneer. Not one of these groups spent independent expenditures in Rhode Island this fall. 501 c(4)s are nominally designated in the tax code as social welfare organizations and may only devote half their funds for independent political expenditures like advertising. Prior to Citizen’s United, they could not electioneer at all. Now, 501 c(4) groups like Crossroads GPS are not only raising and spending millions on advertising, but doing so mostly in dubious concert with their stated purpose. Crossroads GPS, a branch of the 527 Crossroads America, has done little besides spend on politics. If they continue to do so into 2012, which they say they will, we can probably expect a litany of investigations and potential suits against them. Right now, what’s problematic about 501c(4)s both for journalists and the general public, is that they aren’t required to disclose their donors. Around one-third of this fall’s election ads in House and Senate races were funded by these so-called Super PACs (though 501c(4)s are technically not PACs--Political Action Committees).
In sum, neither of the groups that took the fullest advantage of Citizens United to make independent expenditures (501c(4)s and trade groups like the US Chamber of Commerce) had any affect in Rhode Island.
Unions and corporations did however make some independent expenditures in Rhode Island. The Service Employees International Union (SEIU) spent $24,730 on attack ads against Dist. 1 Congressional candidate John Loughlin and on support ads for Congressman-elect David Cicilline in the CD-1 race. National Right to Life, which spent over $2,000,000 on political ads this year, spent just $5,725 on pro-Loughlin ads.
In the Gubernatorial Race, the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO), the SEIU and two prominent Public Teachers Unions--National Education Association-Rhode Island (NEARI) and Rhode Island Teachers and Heath Professionals (RITHP) spent $215,000 exclusively in support of Gubernatorial candidate Lincoln Chafee. Robitaille and Caprio got no independent expenditures besides those from the RGA and the DGA. Finally, the Defenders of Wildlife Action Fund spent $17, 352 on pro-Chafee ads.
Overall, some reports suggest that nationwide, newly empowered groups spent close to $250 million on ads in the 2010 midterm elections. Other reports suggest these numbers are incorporating spending by 527s and other groups previously allowed to electioneer. Either way, the total outside spending caused directly by the Citizen’s United decision amounted to under $250,000 in Rhode Island, and it came almost entirely from unions, not corporations.
All data accumulated from the FEC, Rhode Island Board of Elections, IRS and www.opensecrets.org
Simon van Zuylen-Wood '11