Let’s look at some real numbers.

According to the Federal Election Commission, which is where candidates must file their spending and fundraising reports (not at Harper’s -really), in 2010 candidates for U.S. Senate and House raised just over $1.859 billion   Democratic Party committees – federal, state, and local – raised a little over $600 million, and Republican Party committees a bit under $550 million, for use in federal elections. That totals up to just over $3 billion all told. All of that money – every penny – was legal before Citizens United, because Citizens United did not change any of the laws governing contributions to candidates and parties.

Total independent spending by traditional PACs was just under $68.5 million. All of that – every penny – was legal before Citizens United, because Citizens United did not change any of the laws governing contributions to or spending by traditional PACs. Total independent spending by “Super PACs” and other entities, rounded off, totaled $140 million. Some of that spending would have been legal before Citizens United – that is, all spending funded by individual contributions.

Let’s add that up: $1.859 billion + $600 million + $550 million + 68 million + 140 million = $3.217 billion. Percentage that was illegal before Citizens United? Some portion of $140 million. Let’s say – though we know it isn’t true, but we’re bending over backwards to accommodate the math challenged Harper’s crew – that all $140 million of independent spending by Super PACs and other entities would have been corporate and union spending illegal before Citizens United. That would get you to 4.4%, or, give or take some rounding, eighteen times less than Harper’s claims.

But maybe Harper’s is including state and local political spending – could that be it? Well, no. Data on total state and local spending is less easily determined than federal spending, but it pretty clearly isn’t going to make Harper’s number even close to real. For example, the National Institute for Money in State Politics (which, despite its lofty sounding name, is just a pro-regulation campaign finance group) estimates that  all told, approximately $3.5 billion was spent by all state and local candidates in 2010. Again, all of this would have been legal before Citizens United, which did not change any laws on campaign contributions to candidates and committees.

If you take $3.5 billion in state spending and $3.1 billion in federal spending which was all clearly legal before Citizens United, you would have to have over $13 billion in independent spending in state races to reach Harper’s preposterous 72 percent figure, assuming (which would not be true) that every single penny of that would have been illegal before Citizens United.  That would be 250% of candidate and party spending. How likely is that? The Institute has a series of state by state reports out on 2010. They found that all independent spending in Texas in 2010 amounted to just one percent of the amount given to candidates and committees. In Ohio, the percentage was 11.5%. Furthermore, remember that even before Citizens United 26 states allowed unlimited corporate spending in elections, and two more allowed limited corporate spending. So you are really talking 22 to 24 states that would have to account for that $13 billion. And two of the biggest – Texas and Ohio – clearly aren’t helping. Never in history has spending on state and local political campaigns ever approached $13 billion in any election cycle. Never has it been within one tenth of that amount. Ever.

The reality is that anybody who knows anything about campaign finance knows that Harper’s 72% number is a pure fiction. Nevertheless, people such as Harvard Professor Larry Lessig, a very smart man who ought to know better, have tweeted or retweeted this number. It’s popping around the internet on Facebook and such.

Now, let’s be clear – if over 70% of 2010 ads would have been illegal before Citizens United, we would consider that pretty strong evidence that Citizens United was both correct and necessary. And let’s also be clear that we think that Citizens United was an important decision. But the disinformation that keeps coming out about Citizens United is getting incredibly tiring. If you really hate Citizens United and think it was wrongly decided, you ought to at least have some realistic grasp of the problem.

So how did Harper’s come up with a number so totally divorced from reality? Harper’s claims the number comes from the Center for Responsive Politics, although they give no cite beyond that. But the Center for Responsive Politics has never made any such claim that we can find. (We have contacted the Center and asked them if they could figure out the source for any such claim. We’ll update if they can figure it out. We have our disagreements with the Center, but on data reporting, they’re reliable. See update below.) Other sources seem to be saying that  72 percent of independent spending in 2010 came from sources that would have been illegal before Citizens United.  But even that doesn’t appear to be from CRP. Rather, in March of 2011, CRP reporter Michael Beckel noted that corporate spending accounted for approximiately 17 percent of total independent spending at the federal level, which would make it approximately three-tenths of one percent of total spending – suggesting that Harpers is off by a figure about 237 times the actual amount.

What about those other sources claiming 72 percent of 2010 independent spending would have been illegal before Citizens United? In this article, the thoroughly left-wing Nation claims such a number, and cites as its source yet another campaign finance “reform” group, the Committee for Economic Development (CED). But the report the Nation links to doesn’t include that number anywhere.

Making the whole thing even worse is that certain expenditures which might have been illegal before Citizens United had ready alternatives. For example, the CED report lists numbers for total spending by some 501(c)(4), (c)(5), and (c)(6) groups (non-profits, unions, and trade associations) which may have been illegal before Citizens United because they contained “express advocacy,” that is words such as “vote for” or “vote against.” However, before Citizens United those same groups could have run the same ads except concluding with “Call Representative _____ and tell him his agenda is wrong.” For years, of course, reformers argued that those ads were effectively no different – in fact, in Wisconsin Right to Life v. FEC, a forerunner of Citizens United, they argued that ads without such “express advocacy” were more effective than ads that did specifically urge people how to vote. 

But there’s no need to go further into the weeds. Harpers number bears no relation to reality. Period.

Given the extent to which Harper’s Index is quoted, we expect the 72 percent number will soon enter the lore of urban legend. Harper’s owes its readers an immediate correction.

Update, 2/22, 1:45 p.m.: The Center for Responsive Politics believes Harpers misunderstood a blog post from May 2011 stating that 72 percent of spending by “outside groups” came from sources prohibited prior to Citizens United. This makes more sense, although it should be noted that it, too, greatly overstates the impact of Citizens United, because it includes all spending by 501(c)(4), (c)(5), and (c)(6) organizations. As noted above, much of that spending could have been done prior to Citizens United, using a slightly different message. And in that respect, it points up another benefit of Citizens United; it allows such organizations to be more honest in their messaging (yes, we want to vote against Candidate X, not just call him up; Yes, we want you to vote for Candidate Y).

Harpers? They just blew it. CRP? Their data has been abused, and we understand that they have asked Harper’s for a correction. Professor Lessig? Should never have retweeted such an egregious and obvious error.

At issue was the ongoing distinction between ads that “expressly advocate” the election or defeat of a candidate, and ads that simply discuss issues of interest to the electorate.  Courts have sometimes struggled to find the line between these two categories, despite substantial guidance from the U.S. Supreme Court. But as Colorado law puts significant burdens on those who “expressly advocate,” including a $500 contribution limit, the line is vitally important.

The Court ruled that “express advocacy” included only advertisements that “explicitly advocate[] the election or defeat of a candidate” through specific words such as “vote for,” “elect,” “support” and the like. The Court declined to adopt a less-focused standard that would have allowed Colorado to treat any advertisement that was, in its view, the “functional equivalent” of such ads as express advocacy.

The case represents a win for the First Amendment, and for the principle – most famously articulated in Buckley v. Valeo almost 40 years ago – that the government must give clear warning of what kinds of speech may be regulated. Colorado speakers may now rely on the legal principle that, so long as their discussion of politicians and issues does not include the so-called “magic words” or their synonyms, they may speak without the burdens of heightened reporting requirements and limited contributions.

This is important not only for its own sake (true issue-oriented groups should not have to abide by the strictures of a campaigns), but also because unclear or intent-oriented legal tests are chill speech. When any political adversary can file a legal complaint, speakers – especially grass roots organizations – have to live in fear of the large legal costs necessary to prove their speech was not the “functional equivalent” (whatever that means) of express advocacy. Here, speakers and the state can simply point to the presence or absence of specific terms, eliminating uncertainty and deterring politically-motivated litigation.

Under Colorado law, an environmental group that wants to organize a letter-writing campaign may now do so without turning into a campaign committee – and it will know where that line is. Political speakers that want to discuss the pressing issues of our time may now do so, without the threat of an amorphous standard, and the expensive litigation that can spawn, hanging over their heads.

The case is Colorado Ethics Watch v. Senate Majority Fund, LLC. 

Recall Ginsburg’s short statement concurring in the stay was, ”

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.

“Study: Political Ads Grow Nastier.”

The article cites a recent study by Kantar Media/CMAG that claims that negativity in GOP primary TV ads has shot up a whopping 44% between 2008 and 2012, and claims “it is happening largely because of new rules governing campaign money.” Naturally, it must be Citizens United that has caused such a ruckus; it has, after all, been proven that the 2010 Supreme Court ruling will lead inevitably to negative ads, sovereign debt downgrades, rising drug abuse and the coming zombie apocalypse.

There does seem to be a methodological problem here though; many studies don’t count “compare/contrast ads” in the same category as purely negative “attack ads” but this one does, thereby inflating its own headline-grabbing claim. Ads in this study were considered negative “if they mentioned another Republican candidate,” and so combined any comparison of candidates with more vitriolic attack ads.

One could realistically attribute the apparent increase in negativity to the more fractured Republican party in this cycle: establishment types, libertarians, tea partiers, social conservatives and neoconservatives are all locking horns over issues amid a presidential field that no one seems to feel particularly positive about, a perception supported by both polls and the current delegate counts. In the way that entrepreneurs normally operate in any marketplace, PACs have seen the utility of buying ad time and providing voters with information that they respond to. If voter turnout drops in some primaries and PACs or candidates start to attribute it to their own negative ads, they can adjust accordingly back to positive ones and vice versa.

The article also inadvertently backs up the notion that attack ads tend to be more informative than “positive” ads: one photo shows a screen grab of Romney overlapped with a graph; another compares Newt and Obama with a link to NewtFacts.com, asking viewers to “check the facts” for themselves. Egads man! Ads that actually asks voters to inform themselves? This must be mentioned somewhere on the Mayan Calendar.

Naturally, when the print news criticizes some policy or agenda that a candidate supports, there are no howls of protest about “negativity” in the press, but when a candidate or PAC pays for something remotely critical we are treated to lamentations about the death of democracy.

Romney said at a campaign event in Keene, NH some weeks back that it was better for Republican primary voters to learn about a candidate’s weaknesses before they chose a nominee to challenge the incumbent president. Negative ads refuse to allow candidates to hide behind the banalities that are a common feature of presidential campaigns, forcing them to come out in the open and address their record.

How this is bad for democracy escapes me.

Our Chairman, Brad Smith, previously addressed Justice Ginsburg’s brief “statement” concerning the Supreme Court’s stay in the Western Tradition Partnership v. Bennett appeal.

But two points deserve emphasis. The first is that even Justice Ginsburg concedes that Citizens United “hold[s] sway.” She goes on to vote in favor of staying the Montana Court’s decision precisely because “lower courts are bound” to obey the dictates of the U.S. Supreme Court. She emphasizes the point by citing to a case that chided a lower court for attempting to overturn Supreme Court precedent on its own.

In other words, even the Justices who maintain misgivings about Citizens United saw through the Montana Supreme Court’s ruse.  There’s nothing “unique” about Montana except its willingness to thumb its nose at the Federal courts.

Which brings us to the second point. Despite pro-regulation advocates’ celebration of Montana “speaking truth to power” , the simple fact is that more is at stake here than campaign finance law. Put simply, one can profoundly disagree with Citizens United and still be horrified at the idea of a state court choosing its own interpretation of the Federal Constitution in clear defiance of the Supreme Court

There is historical precedent for elected state officials pandering to their electorates by stymying implementation of Supreme Court rulings. (The Montana Supreme Court is elected). While there is no moral equivalence between the world of Jim Crow and that of the pre-Citizens United era in campaign finance law, it surprises me that more people – especially lawyers who should know better – don’t immediately think of the Civil Rights era, or any of a dozen other historical analogues, when discussing this case. The supremacy of the Supreme Court, and the federal constitution, was a hard-fought victory.

Justice Ginsburg got this part right. Our concern over lower courts ignoring Citizens United isn’t just about a particular interpretation of the First Amendment.

It’s about the rule of law – full stop.  

The grant of the stay isn’t surprising, since the Montana Court’s decision was pure judicial lawlessness. What’s more interesting, while we wait for the inevitable reversal, is the reaction from the “reform” lobby. We start at the top, with Justices Breyer and Ginsburg, who offered a “special statement.” The Justices wrote, in its entirety,

Super PACs are the result of a pair of two-year-old federal court decisions. Citizens United v. Federal Election Commission held that the government cannot prohibit corporations and unions from spending money to support or oppose candidates; SpeechNow.org v. FEC upheld the constitutional right of persons spending money independently of any candidate or party to pool their resources. But even prior to these decisions, a majority of states allowed unlimited corporate independent expenditures in political races, including the six best-governed states in the Union, according to the Pew Charitable Trust and Governing magazine. In fact, there were no federal restrictions on super PACs until 1974.

The article continues:

Others complain that super PACs spend “secret” money. This is just not true. By law, super PACs are required to disclose their donors. There are groups that have never had to disclose their donors, non-profits such as the Sierra Club, Planned Parenthood, the NAACP, and the NRA. If you want more disclosure, super PACs are a step forward.

Super PACs also increase competition. In 2010 Democratic candidates and party committees outspent Republicans by approximately $200 million, but super PACs offset approximately $100 million of that.

Incumbents don’t like it, but political competition is a good thing. Incumbents usually outspend challengers by better than 3 to 1. Super PACs, which tend to support challengers, have nullified some of this advantage. For example, Rep. Peter DeFazio, Democrat of Oregon, complains about super PACs, which spent approximately $500,000 against him in 2010. DeFazio nonetheless outspent his opponent by a sizable margin and won. Still, for the first time in years he had to campaign hard for his constituents’ support. That’s a good thing.

The article concludes:

But the best thing about the Citizens United and SpeechNow.org decisions is that they get government out of the business of regulating political speech. Who would say that you can’t spend your own time and money to state your own political beliefs? Vindicating that fundamental First Amendment right is good for democracy.

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