Wednesday, June 13, 2012

Money and the recall

Paul Secunda, as a labor law professor, weighs in on the aftermath of the recall. He makes some good points. But as (I think) one of two people in Wisconsin who teach Election Law (Mike Wittenwyler, an adjunct at UW, is the other), I would like to revise and extend his remarks.
Paul complains of the "8 to 1" spending advantage said to have been enjoyed by Scott Walker and suggests that this somehow can be attributed to the the results of the Supreme Court's decision in Citizens United v. FEC. This advantage, while overstated, is the result of a law. But that law has nothing to do with Citizens United.

First, a caveat on the "8 to 1" figure.
As my colleague, Tom Kamenick, pointed out (and not at my direction, I was off in DC), this metric doesn't reflect the situation on the ground. Paul's numbers - a mantra on the left over the past week - reflect only the amounts raised by the campaigns during the recall election (and excluded amounts spent by independents and the recall effort itself). It also ignores everything spent in last summer's recalls. When you take all of that into account, the GOP advantage is much less pronounced.

But this is a law school blog so let's focus on the law on contributions to a campaign.
Citizens United had nothing to do with contributions to Governor Walker's campaign. Citizens United had nothing to do with campaign contributions at all.
The constitutional treatment of campaign finance regulation has long distinguished between contributions and independent expenditures. The former have been held to be subject to more stringent regulation because, according to the Court, contributions are far more likely to risk actual or apparent corruption. That distinction is controversial but it has been consistent over the past forty years.

For many years, all independent expenditures that were not express advocacy for the election or defeat of a candidate - so called "issue advocacy" -  were, for the most part, constitutionally protected in a way that permitted anyone to spend what he wished to speak on issues.  This was so even when the ad was crafted in a way that could reasonably (even evidently) be interpreted as criticism of a candidate for office during an election. The McCain-Feingold Act briefly changed the rules (although it proved to be easily evaded) for certain forms of spending in federal elections. But the Supreme Court, in FEC v. Wisconsin Right to Life (WRTL II), effectively made clear that restrictions on the source of funding for independent issue advocacy (which it defined as any communication susceptible of no other reasonable interpretation than as a call for the election or defeat of a candidate) were unconstitutional. This included communications funded by corporate or union treasury funds.
Citizens United held only that the First Amendment also protects the use of corporate (and, by implication, union) treasury funds for express advocacy, i.e., advocacy calling for the election or defeat of a candidate. How significant that change was is unclear. Prior to the decision, corporations and unions could use their treasury funds to exhort voters to call Scott Walker or Tom Barrett and express their outrage over some ill-begotten position that the candidate had taken. After Citizens United, they could add a call to vote for or against a candidate. Since only a moron could have failed to cast an ad critical of a candidate as an issue ad, one might question just how significant that change was.
But corporate and union campaign contributions  - dollars that go to the campaign - can be - and still are - restricted. While one could use some of the reasoning in Citizens United to attack limits on corporate contributions, that hasn't happened yet. Both the 8th and 9th Circuits have held that limitations on corporate contributions survive Citizens United. (A district court in the 4th Circuit held otherwise in the context of a criminal prosecution. Oral argument in the Court of Appeals was held last month.)
So none of the "8 to 1 advantage" in contributions came from corporations other than as might otherwise be permitted by state law (e.g., corporations may establish PACs to make contributions, but that money can't come from the corporate treasury). None of it is attributable to Citizens United.
Walker was aided by a provision of state campaign finance law related to recall elections. Because recall organizers are free to raise and spend as much money as they can, the law permits a candidate subject to recall - from the moment the recall drive begins to the moment a recall is ordered - to raise money without regard to the normal contribution limits for the purpose of resisting the effort to obtain a recall order. Citizens United had nothing to with that either.
Citizens United may have had an impact on the money raised by for independent expenditures. It permitted union and corporate treasury funds to be used for express, as well as, issue advocacy. Moreover, in a subsequent decision, called v. FEC, the DC Circuit held that corporations and unions could make unlimited contributions to organizations engaging in independent advocacy. The FEC did not seek Supreme Court review. lead to the creation of so-called SuperPACs which also do not contribute to candidates, although they spend to support them.
Who did this help? It's unclear. As others have noted, there seems to have been more independent efforts for Barrett than for Walker. As Professor Michael McConnell pointed out in the Wall Street Journal, much of this was union money. The largest spenders on Walker's behalf seem to have been individuals. Citizens United may have actually helped unions close the gap in the Wisconsin recall election.

This shouldn't surprise anyone. There are all sorts of institutional obstacles to corporate political spending. The extent to which current law requires such spending to be disclosed is currently unclear, although the Citizens United court broadly endorsed the constitutionality of disclosure requirements.
Beyond that, it is dangerous to place too much emphasis on who spent more money in an election. I would not say - and I assume Paul would not say - that the substantial financial advantage that Barack Obama held over John McCain in 2008 was the cause of his victory. While the winning candidate usually raises more money, the causation probably runs the other way. Political money follows the polls.
In the Wisconsin recall, exit polls suggest that over 90% of voters made up their minds over a month before the election. Indeed, one of the most astonishing things about the Battle of Wisconsin is that millions and millions of dollars, wall to wall organizing, demonstrations of a type rarely seen in this country since I was about ten and almost nonstop political disputation changed almost no one's mind.

Cross posted at Marquette University Law School Faculty Blog.


George Mitchell said...

The 8-1 fiction will be enshrined by those in denial of what happened June 5. They need an explanation that absolves them of responsibility for making — and losing — the biggest political bet in Wisconsin history.

George Mitchell said...

From MacIver:

Tracking Big Labor's Massive Investment in the Failed Wisconsin Recall
As a grown man cried on CNN and liberal pundits complained everywhere else that 'their side' was outspent 8 to 1 in the failed attempt to recall Governor Scott Walker, we at the MacIver Institute knew that was a demonstrably false narrative. An examination of the campaign expenditures of the candidates alone does not tell the complete story.

For months, the John K. MacIver Institute for Public Policy has been tracking the grassroots activities, financial contributions and independent expenditures of more than fifty state and national leftwing organizations who were active in Wisconsin in the days leading up to the June 5th election.

So far, we can track more than $23 million dollars in financial support. MacIver News' staff complied this graphic of Big Labor's unprecedented spending using official reports on file with the Wisconsin Government Accountability Board (Totals are accurate as of 6/12/12).

Read the entire post as see the Big Money Matrix and the Mobilization Matrix graphics. LINK->