Blame Me for the Explosion in Super-PAC Ads

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Blame me for the explosion of political advertising the past few years, the author writes, and I happily accept responsibility because the case provides vital protections for our First Amendment rights to speak out about candidates and our government. Above, a view of the Republican presidential candidates debate sponsored by ABC News at Saint Anselm College in Manchester, New Hampshire February 6. Carlo Allegri/Reuters

It's a common misconception that Citizens United v. Federal Election Commission (FEC) created what is now known today as the "Super-PAC."

In fact, it was a separate case, SpeechNow.org v. FEC, for which I was the co-plaintiff, which allowed people to pool their resources together in unlimited amounts for the purposes of independent expenditures.

In other words, you can blame me for the explosion of political advertising the past few years, and I happily accept responsibility because the case provides vital protections for our First Amendment rights to speak out about candidates and our government.

Unfortunately, those who oppose free speech would overturn SpeechNow, whether through constitutional amendment or court decision. That would be a serious mistake and would grant unprecedented censorship powers to government officials.

While Citizens United made it easier to win SpeechNow, we were likely to win without it. To understand why, it's important to understand how we got here in the first place.

The seminal campaign finance decision Buckley v. Valeo in 1976 dealt with the post-Nixon Federal Election Campaign Act (FECA) that created a whole new regulatory regime for how campaigns are funded and who could say what and how about candidates or government generally.

The Buckley decision upheld parts of the law, struck down others and overall enshrined a few basic principles: that Congress could limit contributions to candidate campaigns and parties, but it couldn't limit the amount spent on campaigns because that would limit speech guaranteed by the First Amendment.

It's too bad that Buckley upheld the contribution limit—incumbent re-election rates have only increased since the FECA was passed. After all, it's difficult to defeat an incumbent sitting on a massive war chest while you're spending your time raising money a few thousand dollars at a time.

Finally, in Buckley the court also ruled that individuals could spend as much money as they want to influence an election so long as the money was spent independently. My case, SpeechNow, simply takes that a step further.

If one person can spend money independently of a campaign to influence an election, then why can't two people combine their resources to, say, run the same TV ad with the same message? Why can't five, 10 or hundreds of people do the same thing? That's what a Super-PAC is.

Money isn't speech and neither Citizens United nor SpeechNow says it is. But what money allows people is to communicate to voters. To take one example, how can one run a newspaper ad without paying the newspaper for it? If Congress could limit such spending, then it might well have the power to limit the amount spent to produce a newspaper, blog, or even to promote religious views.

That's why Super-PACs are a good thing. They allow people with similar views to speak together to promote them by speaking to other Americans. And with more money spent on speech, voters are better informed about the candidates and the added information boosts turnout too.

Since these groups became legal, we've seen more competitive elections and more choices in candidates running for office. For example, in this year's Republican primary for president, without Super-PACs, we might have headed quickly toward a coronation of the candidate who could raise the most money directly from individuals. Instead, a record number of candidates were considered viable because they had the support of outside Super-PACs, and voters have more choices.

It would make even more sense to eliminate the contribution limits so that the candidates running could have more resources to speak during their campaigns. There is little doubt more and better candidates would run.

Former Minnesota Democratic Senator Eugene McCarthy (who was a co-plaintiff in Buckley) was able to force President Lyndon Johnson from the presidential race in 1968 by raising today's equivalent of $10 million from a few wealthy individuals, which he spent on the New Hampshire primary.

Without that money, voters wouldn't have heard his articulate anti-war message. He didn't become president, but his campaign did well enough to force LBJ out of the race and the politics of the Vietnam War changed.

Reversing the SpeechNow decision would make it even harder for a campaign like McCarthy's to exist today. We should make it as easy as possible for more voices to be heard in the public square. Then let the voters decide.

As Jeb Bush has proved this year—money isn't everything.

David Keating is the president of the Center for Competitive Politics.

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