The 2L class as a whole at the law school is more than averagely aware of the specific details of Citizens United v. FEC, the landmark Supreme Court case that declared corporations (and unions) are people, money spent on campaign attack ads is speech, and therefore corporations (and unions) have an unfettered, first amendment right to dump unlimited amounts of money into attacking political candidates at will during elections. Many 2Ls read every last comma in every last footnote in the decision, and perhaps came to rather different conclusions, as part of the 1L competitions last year. Thus re-trodding down that path would be decidedly uninteresting and yesterday’s news.

However, now we have an opportunity to take an election, peak under the hood, and see how Citizens United affected—or failed to affect—election spending and advertising in a cycle with a major Republican victory. If you agreed with the principles in Citizens United, you may not even be disconcerted by what we find, though I somewhat doubt that.
GWU’s own Campaign Finance Institute partnered with UVA’s Miller Center of Public Affairs to report in mid-October that “Election-Related Spending by Political Committees [PACs] and Non-Profits went up by 40% in 2010,” but the committee report counsels a healthy dose of caution before jumping to any conclusions based on the other numbers it dishes up. Still, it goes on to mention that “Democratic groups are on a path toward spending about 10% more than in 2008 while Republican groups seem to be up 70%,” all before the final spending frenzies that took place the last couple of weeks in October.

Despite the caution, a few common understandings about the data have emerged. No one seems to argue that spending, outside or not, greatly favored Republicans this cycle, nor however does anyone seem to think that corporations (or unions) started endorsing candidates openly as never before. What causes more tension is following the money from the increased ads back to the sponsoring non-profits and then peering into the ether to wonder about the anonymous donors.

It seems rather clear that corporations or other donors still strongly appreciated anonymity, so they funnelled their election money to the non-profits. (And given the possible Republican wrath that Wal-mart may now be facing for having supported higher minimum wage laws, the health care overhaul, and some Democratic candidates, anonymity may continue to sound rather appealing for the foreseeable future, too.) But in turn the non-profits put out both what is by now familiar issue advocacy but also significantly more express advocacy for (or against) specific candidates. Whereas we may recall the 527s of yesteryear, the buzz now is about the 501(c)4’s. Who, exactly, paid for these attack ads? Inquiring minds may never know. 501(c)4s do not have to disclose their donors.

Unless, of course, the IRS gets its act together as Ohio State Tax Professor Donald Tobin argued it ought in an October 6th post on the Tax Prof Blog. The problem with this classification of non-profits, he says, is that they are supposed to be primarily for “social welfare” and only dabble a little in political spending. So if Tobin is right, depending on the non-profits, the spending, and the ads, they could be illegal and totally unethical. The lawyers involved should know better and the IRS should use one of the many options in its arsenal to intervene.

Important tax code provisions and their proper enforcement aside, though, on October 7 the New York Times’ Michael Luo reported that the whole Citizens United issue is not so much even a legal change to election finance as a psychological one, where suddenly donors realized that they could be funnelling more anonymous money. They felt emboldened, and then they acted. So it seems law begat politics not through actual legal renderings but through attitude.

Enter Fox News. There’s little anonymity here. The Washington Post’s Dana Milbank reported, after watching eighteen straight hours of election coverage on Fox, that “Murdoch and News Corp. took the unusual step of donating $1.25 million to the Republican Governors Association and another $1 million to the U.S. Chamber of Commerce, which led the effort to defeat Democrats.” One could almost even argue that doesn’t seem so out of line when compare with the Service Employees International Union donating $1.1 million to Democrats, and even less considering the American Federation of State, County and Municipal Employees’ contribution of $3.3 million. It is all Political Action Committee spending anyway, right? Never mind that, as Milbank cited, the liberal watchdog Media Matters is reporting that over thirty Fox News personalities directly raised money or supported Republican Candidates in over six-hundred separate instances, all in the plain light of day. This corporation, for one, is unabashed about its involvement and support.

Still, as the Sunlight Foundation reports, this election saw at least $110 million in “dark money,” which is spending by (at least currently) undisclosed donors. And further, the foundation reported on October 15 that for the first time outside spending on elections exceeded party spending, but notably that is true for the Republican party only. Outside spending for Democrats was far, far lower. The foundation, which supports greater transparency in government generally, cites this summer’s D.C. Circuit decision in Speech Now.org v. FEC as being the other shoe that dropped. That case, for which SCOTUS denied cert., said that 527s have the right to raise unlimited amounts of money to spend directly on opposing or supporting candidates in elections to Congress.

What does it all mean? The answers are decidedly murky and easily political. And yet it is hard to deny that something happened here. Pundits will disagree on exactly what and why for some time to come, but plainly we are seeing more outside money pouring into elections on the right. Might that 70 percent rise be the opened floodgates of which Obama warned during the State of the Union where Justice Alito famously mouthed a big “No?”

Perhaps this “something” happen because legally the decision wasn’t such a big deal but politically it was earth shattering. Would it really be possible, in fact, for SCOTUS to rule on election finance without that be one of the at least short term effects?

Whatever the long term legacy will shake out to be, Citizens United in the 2010 midterms did seem to have one very noticeable effect, the defeat of Wisconsin Democratic Senator, Russ Feingold. It seems a special form of tragedy that a pioneer in campaign finance reform lost his seat due in no small part to “unfettered” spending by anonymous special interests.

In all of this I just wonder… to be sure, the First Amendment is one of the most beautiful cornerstones of our democracy. It inspires rampant adulation daily. I for my part dutifully and fundamentally believe that to properly support and uphold First Amendment tenets, particularly on speech, it is critical to defend even the ugliest speech that makes my heart sink and my ears bleed. But something else is hiding in the folds here. Where does the First Amendment say that unfettered free speech gets to be anonymous? When did it become a cloak for the rich to keep their secrets? We all know perfectly well it says no such things. So what about Justice Kennedy waxing rhapsodic about free speech led to all of this? Inquiring minds may never actually know.