don’t know, but until now, almost all the money in the Super PACs has all been spent for Republicans. Maybe that’s because that’s where the passion was from the mid-term election, but there have been no Democratic equivalents to the big Republican groups like American Crossroads in raising that much money in this cycle. So not surprisingly, Republicans are saying if we’re going to have reform, let’s have it after we’ve spent all this money.
PACs. Congress can change the statute. The FEC can change the regulatory language. The courts could, again, tell the FEC they have to rewrite their regs. So even if Montana comes to nothing, I think there is a battlefield there in all of these areas.
Why is this a partisan issue? It seems more of a Pandora’s Box than it is some sort of bright line about a First Amendment issue. Republicans in this primary campaign are seeing some of the darker side of what might happen, aren’t they?
Bob, if Citizens United stays with us what long term effect will that have on the American political system, and how might that change your role as GC for the Obama campaign?
Bauer: Well, it’s partisan in this sense. Trevor is Republican and John McCain’s a Republican and so there are clearly differences over this issue within the Republican Party, but by and large the Republican Party institutionally has long been highly skeptical of campaign finance regulation. It has viewed it as a questionable undertaking by the majority to limit the political rights of the minority, or alternatively, just as a flat-out offense against the First Amendment. I remember when I first started practicing, the Republican National Committee published a newsletter called First Monday, shortly after the Watergate reform was passed, in which they were thundering away against campaign finance regulation. This view was reflected in the statements of the leading Republican legislators and politicians; it was reflected in the character of a number of Republican-supported nominees to the Federal Election Commission, Trevor being a notable exception. So there has always been this divide between the two parties on what it means for the government to step in and regulate the flow of political money.
Bauer: Well, you raise an important question, by the way, which is the difficulty of taking stock of what all this means while it’s happening. There will be a lot of data collected about this experience. It’s going to take some time to gather and assess, and so the judgment about how much sway Super PACs did have on this election is very hard to make conclusively in the heat of the battle. For years people have been studying questions like the effect of PAC contributions and expenditures, or forms of corporate “issue advertising”—sham issue advertising as it continues to be called— and there’s going to be new, intensive attention paid to Super PACs. The experience is so limited, though, that I think some of the conclusions to be drawn have to be highly tentative. I do believe that many are prepared to say that it has had a real effect on the winnowing of primary fields. If a candidate’s camp
Citizens United President David Bossie meets with reporters outside the Supreme Court in Washington, January 21, 2010.
streak in the Republican party at all levels. Beyond that, there is maybe a division between Washington Republicans, meaning the party leadership, and the core of the party out in the country. One of the interesting things going on out there is if you look at polling, Tea Party Republicans have a more populist bent. They may not like government regulation but they don’t like corporations or labor unions buying elections either, and if you look at some of the polling, they’re also not happy with Citizens United. The party leadership is reflecting both the libertarian streak and the practical reality that Citizens United enabled groups who wanted to spend money to elect Republicans to do so directly and openly and with larger sums then they could do before. We’ll see how the partisan world plays out this year now that it looks as if the Democratic-leaning Super PACs are going to be more active and have encouragement from the president and the party leadership. Will that even the playing field? Will it change it? I
AP Photo/Lauren Victoria Burke
Potter: I think there has always been a strong libertarian
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