BREAKING: Matt Bai Is Wrong

Prestige political journalism is so frequently brain-dead or bankrupt, it’s worthwhile to note those occasions when someone whose byline appears below a fancy masthead pens something insightful and true. And this is especially worthwhile if the good work in question comes from even-the-liberal-New Republic.

So it is with great pleasure that I present a recent, excellent piece from TNR‘s Alec MacGillis — a takedown of that paragon of Village Wisdom, Matt Bai, and his recent attempt to downplay the significance of Citizens United:

Everyone loves a good counter-intuitive story, but Washington loves one sort in particular: the kind that assures us all that something we’ve been led to believe was a worrisome problem is, in fact, not all that big a deal after all, thus allowing us to return to watching “Veep” or “The Newsroom.” Yesterday’s New York Times Magazine offered a classic of this form, a Matt Bai piece arguing that the Citizens United ruling of 2010 is not nearly as responsible for the boom in campaign spending by outside groups as those whiny goo-goo types make it out to be[.]

Bai’s argument basically rests on the fact that campaign spending has been increasing near-exponentially for a while now, certainly before the Supreme Court decided it was long past time to remove the boot-heel of government from the Koch brothers’ necks. And that’s true enough. But what Bai ignored — despite apparently speaking at-length with campaign law expert Rick Hasen when conducting research for the article — is the way Citizens United removed the under-appreciated but very real financial penalties that used to loom above anyone hoping to circumvent electoral finance law:

As I told Matt, and what’s missing from this piece, is the realization that there was considerable legal risk in giving to a 527 before Citizens United and its aftermath. As one reader to commented to me, “Matt’s article suggests that not much has changed post-Citizens United because even prior to the CU decision, “you would have been free to write a check for any amount to a 527 . . . .”  This is untrue and all three groups Matt cites were determined by the FEC to have violated federal law during the 2004 cycle.  ACT paid a $775,000 fine (http://www.fec.gov/press/press2007/20070829act.shtml).  SwiftVets paid a $299,500 fine (http://www.fec.gov/press/press2006/20061213murs.html).  Club for Growth paid a $350,000 fine (http://www.fec.gov/press/press2007/20070905cfg.shtml).

If Sheldon Adelson really was planning on giving $100 million to 527s before the Citizens United revolution to support a presidential candidate, you can bet that there would be a criminal investigation and very serious charges considered. i have serious doubts Adelson or anyone else would have risked this (much less corporations giving considerable sums to 501c4s for election-related activity).  Now we can debate (and I have debated with others) whether the law barring contributions greater than $5,000 to independent expenditure committees would have fallen even if CU had come out the other way.  But that’s a different point than the one Matt was making.

There’s no reason to think we’d see this explosion of outside money if CU did not start this cascade of events.

Moreover, as more than a few journalists who spend time talking to left-of-center folks besides Bob Kerrey could’ve told Bai, the post-Citizens United world is expressly felicitous to the Right, since rightwing sugar daddies like Adelson or the brothers Koch are not only willing to pour barrels of cash into elections but are ideologically and financially predisposed to do so. MacGillis makes this point at length:

[T]here is a whole other swath of wealthy liberals who realize full well what the stakes are in this fall’s election, even if they are perhaps not as “pumped up” as they were in 2004. But they are holding back from giving as much as they could to the SuperPACs and other outside groups precisely because they are “queasy” about them. That is what I found in speaking to many of these potential donors for a recent article, and it is what Robert Draper found in reporting his own recent Times Magazine piece about the pro-Obama SuperPAC. Put simply, Citizens United put liberals at such a disadvantage not only because the other side has more millionaires and billionaires and friends in high corporate places, but because the left’s millionaires and billionaires have existential qualms about unlimited campaign donations that simply do not exist on the right.

Personally, I find these liberals’ squeamishness to be profoundly annoying. I think it sucks that our elections are now, even more than they already were, largely contests between warring members of the 1 percent. But the best way to change that isn’t for liberals with money (aka power) to take their ball, go home, and rest serenely in their self-righteousness while President Romney places judges on the Supreme Court who’ll make Scalia look like a RINO squish. Changing corrupt systems can’t be accomplished entirely from the inside, true; but unless Soros has plans to don a mask and cape, working from the outside isn’t going to be enough either.

My kvetching aside, you simply cannot argue that Citizens United hasn’t been the catalyst for shifts in the electoral playing field without addressing MacGillis’s point. As he says of Bai, “Only someone trying willfully to rationalize the status quo” would do otherwise.

49 replies
  1. 1
    RP says:

    I actually think CU might not be as significant as it’s often made out to be, but not for the reason Bai mentions. I think it’s possible (note that I did not say likely) that all of that extra money just won’t be worth that much to the candidates. Money is very helpful of course, but there has to be a point of diminishing returns.

  2. 2
    gogol's wife says:

    Thank you for this. I was so disgusted by the first paragraph of that piece that I didn’t even notice who had written it. I thought it was their other doofus, Adam Davidson, who normally is in that spot, but he usually writes nonsense about economics, not politics. Matt Bai is a real menace.

  3. 3
    gene108 says:

    Soros has plans to don a mask and cape

    If Soros is the liberal savior, God help us all.

    Soros isn’t particularly liberal on many issues, especially economic ones. He’s more of a moderate, who realized how fascist* Bush & Co. were and went to bat for the Left in a pinch.

    *Soros hates fascists: A concise summary of his politics.

  4. 4
    Inkadu says:

    If liberals could make a personal profit from influencung government, you can bet their squeamishness about dumping money into elections would dissappear. There is simply no way for this to be a fair competition. Money will always favor conservatives because conservative politics concentrates wealth – – whomever has money can get even more. What’s the benefit for a progressive donor to give millions? To build a better society? There’s not many people like that, and if there are, they’re going to be a few million poorer every year.

    The rich don’t need government, but we all apparently need their money to win elections.

  5. 5
    Patricia Kayden says:

    So, Bai thinks that it is okay for a billionaire to pour out unlimited millions to get someone elected, while someone like me (poor, working class) can only donate a few bucks?

    Doesn’t seem very democratic to me.

  6. 6
    burnspbesq says:

    “Bai is wrong.”

    You say that like it’s surprising.

    The bigger problem, of course, is that as a matter of First Amendment law, Citizens United was correctly decided.

    Might there be a law that Congress could pass that would be Constitutional? Maybe. I don’t think that disclosure laws are per se problematic. And there is certainly nothing wrong with the IRS writing tougher regulations governing the activities of 501(c)(4) orgs and actually enforcing those regulations (there was a piece in Tax Notes Today this morning, that I can’t link to because it’s behind a paywall, that suggests that that might be happening soon).

    But there is no frontal attack on Citizens United that can succeed, because political speech is the core of what is protected by the First Amendment. In the marketplace of ideas, if you want to compete with a guy who owns a printing press, buy a bigger printing press.

  7. 7
    Punchy says:

    @RP: In KS, these GOP groups are playing commercial after commercial after commercial pimping their guy. Havent seen one for the Dem. There may be diminishing returns down the road due to saturation, but right now, there’s not saturation, and the Repub candys are all over the airwaves.

  8. 8
    Cassidy says:

    @Patricia Kayden: Well, no, you can donate millions and billions and jazillions. You just have to have it. And a corporation. And a fuzzy 401K. And bank accounts in the Cayman Islands.

  9. 9
    c u n d gulag says:

    Sometimes, I think that Matt Bai thinks he’s another Matt Taibbi.

    That’s like Fred Thompson thinking he’s another Hunter S. Thompson.

  10. 10
    Steve says:

    @burnspbesq: I like how in a 5-4 decision, you’re the all-knowing authority that determines the 5 were right and the 4 were wrong. It’s not just your personal opinion or anything; the 4 dissenters just don’t understand the First Amendment as well as you do.

  11. 11

    […] This item appears at Balloon Juice. This entry was posted in campaign finance. Bookmark the permalink. ← New Super PAC Tracking Tools from Sunlight […]

  12. 12
    Elizabelle says:

    Thank you.

    Saw the blurb on the NYTimes blog, and thought “glibertarian porn.”

  13. 13

    BREAKING: Matt Bai Is Wrong

    Isn’t that like saying water is wet?

  14. 14

    @c u n d gulag: Though Taibbi has admitted being mistaken for Bai, just like Krugman gets mistaken for the Mustache of Understanding.

  15. 15
    El Cid says:

    A million billion years ago when Communists and other wacko ultra-lefties walked the Urf, someone might have pointed out that super-rich liberals do in fact share the same class interests as super-rich conservatives, but nowadays we realize it’s all about morality and the way we imagine rich liberals to be based upon their admirable portrayal in various fictional venues.

  16. 16
    burnspbesq says:

    OT: Msgr. Lynn gets three to six. I would have been happier if he’d gotten the max.

  17. 17
    El Cid says:

    @Phil Perspective: He knew what he was doing by having a short last name heavy on the B, A, and I.

  18. 18
    Walker says:

    Burnsby is unfortunately right. If we want to get rid of Citizens United we have a bigger challenge: we need a constitutional ammendment that establishes corporations in a different legal status as people. And it has to do it in a way that still gives them enough rights to function.

    Which means it is not happening in our lifetime.

  19. 19
    Culture of Truth says:

    k thanx bai

  20. 20
    KG says:

    @burnspbesq: well, yes and no. I agree with you entirely that political speech is at the center of First Amendment law, and curtailing it is damn near impossible. I thought the ban on ads 30/60 days before elections was flatly unconstitutional, but that’s another story.

    The real problem is the method by which the speechifying is done. And I get that First Amendment law, particularly freedom of association, can (and maybe should) allow PACs to exist. But when the money comes from unknown sources, and the speech is basically given by a veiled, hooded entity that no one knows who it really is… that’s a problem. I want to know who is behind the Scream mask.

  21. 21
    srv says:

    Alexander Cockburn also lost to cancer today.

  22. 22
    srv says:

    Ah, guess it was a couple days ago.

  23. 23
    Todd says:

    @burnspbesq:

    My feeling is that the Service could promulgate a reg deeming political/issue contributions to be dividends, and deemed as income to shareholders, reportable on K1s.

    The alternative is to go on a 50 state crusade specifically requiring shareholder approval for contributions to issue campaigns.

  24. 24
    Dennis SGMM says:

    @KG:
    It seems anti-First Amendment to me. The First Amendment was, I think, meant to encourage open political speech. When unknown and unaccountable actors collaborate in buying the biggest possible megaphone in order to affect the political process then what’s happening isn’t “speech.”

  25. 25
    Belafon (formerly anonevent) says:

    @burnspbesq: The ruling was only correct if you accept the idea that money == free speech. I do not accept this, and therefore the entire reasoning behind CU fails.

  26. 26
    comrade scott's agenda of rage says:

    @Walker:

    If we want to get rid of Citizens United we have a bigger challenge: we need a constitutional ammendment that establishes corporations in a different legal status as people. And it has to do it in a way that still gives them enough rights to function. Which means it is not happening in our lifetime until our species goes extinct.<

    Fixed.

  27. 27
    comrade scott's agenda of rage says:

    @Walker:

    If we want to get rid of Citizens United we have a bigger challenge: we need a constitutional ammendment that establishes corporations in a different legal status as people. And it has to do it in a way that still gives them enough rights to function. Which means it is not happening in our lifetime until our species goes extinct.

    Fixed.

    Actually, maybe not. All it takes is for Fat Tony to go meet his maker and a 5-4 shift the other way at The Court, then the appropriate legislative battle followed by the court system process.

    Yeah, might not happen in our lifetime. And still won’t if the Senate flips to the Repups. They’d probably reject out of hand any Obama Sooopreme nominee short of Bork.

  28. 28
    BGinCHI says:

    Only someone trying willfully to rationalize the status quo

    There it is.

    That’s the Beltway media in a sentence.

  29. 29
    burnspbesq says:

    @KG:

    But when the money comes from unknown sources, and the speech is basically given by a veiled, hooded entity that no one knows who it really is… that’s a problem. I want to know who is behind the Scream mask.

    Totally understand and agree. At a minimum, I think 501(c)(4)s should be required to disclose who their contributors are. But you will hear the usual suspects whine loudly and at length about “chilling effect,” and that is a claim that a court weighing the constitutionality of disclosure rules will have to carefully evaluate.

    OT: Three former C-level execs of Anglo Irish Bank, including the former CEO, have been indicted on a variety of charges. A good day for the good guys.

  30. 30
    burnspbesq says:

    @Belafon (formerly anonevent):

    The argument you’re advancing confuses means and ends. Money isn’t speech; it makes sure that the spender’s speech will be heard.

  31. 31
    Villago Delenda Est says:

    Matt Bai, villager scum.

    His tumbrel is waiting.

  32. 32
    The Moar You Know says:

    If we want to get rid of Citizens United we have a bigger challenge: we need a constitutional ammendment that establishes corporations in a different legal status as people. And it has to do it in a way that still gives them enough rights to function.

    @Walker: This is pretty much the deal. Corporate personhood is a large part of the continuing strangulation of individual rights that we’ve been seeing in this country for far too long.

    His tumbrel is waiting.

    @Villago Delenda Est: Unless you’re building the fucking things, ditch this line. There’s no tumbrils or heads on pikes in the future for these shitbags and both you and I know it.

  33. 33
    Dennis SGMM says:

    @burnspbesq:

    The argument you’re advancing confuses means and ends. Money isn’t speech; it makes sure that the spender’s speech will be heard.

    The problem with that proposition is that those with the most money to spend will be heard the most. If nothing else, that is anything but democratic.

  34. 34
    the Conster says:

    @Phil Perspective:

    It was supreme hack David Gergen who mistook Taibbi for Bai, when Gergen expressed shock that “Bai” hadn’t been deferential enough to the banksters. So yeah, Bai’s angling for the Gergen/Broder chair at the MSM roundtable trough.

  35. 35
    weaselone says:

    @burnspbesq: I wasn’t under the impression that there was a right to be heard.

  36. 36
    burnspbesq says:

    @weaselone:

    I wasn’t under the impression that there was a right to be heard

    I don’t believe I said that or anything like it. Being able to be heard and having a right to be heard are not even remotely the same thing.

    @Dennis SGMM:

    The problem with that proposition is that those with the most money to spend will be heard the most. If nothing else, that is anything but democratic.

    That’s always been true, going back to before we had a Bill of Rights. If you’ve got an idea about how to level the playing field without wiping out the First Amendment, let’s hear it.

  37. 37

    @Belafon (formerly anonevent): I don’t think burnspbesq remembers the tortured reasoning that Justice Kennedy used in Citizens United. A 6th grader would flunk English class using the reasoning Kennedy did. Kennedy basically claimed, in so many words, that corruption doesn’t exist. And that guys like the Koch Brothers and Sheldon Adelson just give to politicians out of the goodness of their own heart.

  38. 38
    daveNYC says:

    Money doesn’t just allow you to be heard. It also causes other speach to not be heard. There’s a finite amount of ad time available for purchase. What happens when the huge amount o money that CU let into the system distorts the prices for that ad time so that only certain. Dry wealthy voices can be heard?

  39. 39
    tam says:

    Well, hopefully Anonymous will go sniffing around the databases of some of these SuperPACs. I’d love to see how many foreign donors are exercising their powers of free speech.

  40. 40
    Dennis SGMM says:

    @burnspbesq:
    The First Amendment, like the Second Amendment, has been tortured into shapes that the Founders never dreamed of. The idea of sane regulation of either of them to address the needs of a society that the Founders could not have foreseen are off the table.

  41. 41
    El Cid says:

    @tam: It, uh, violates Free Speech to let people hear what powerful people are doing and saying to each other. In the same way, governments should get to do whatever they want and it should be kept secret, else undemocratic ordinary people hear what’s going on in their names.

  42. 42
    NonyNony says:

    @burnspbesq:

    Being able to be heard and having a right to be heard are not even remotely the same thing.

    Given what you’ve said here (that money isn’t speech, just that it helps your speech get heard) explain now the other thing that you said (that Citizen’s United was correctly decided and that the campaign finance regime it overturned was unconstitutional).

    It seems that if money is not in fact speech but just an enabler for speech, then restricting money for campaigns should be no more or less difficult than telling people that they can’t hold a campaign rally in certain areas of a city. And yet that is not in fact the case these days.

  43. 43

    @burnspbesq:
    If someone gives money to a terrorist organization, is that covered under the First Amendment?

  44. 44
    burnspbesq says:

    @Judas Escargot, Acerbic Prophet of the Mighty Potato God:

    If someone gives money to a terrorist organization, is that covered under the First Amendment?

    If you question is “is there room for doubt as to whether laws that criminalize ‘material support’ are consistent with the First Amendment,” the answer is “yes, there is plenty of room for doubt.” If I were defending someone accused of material support, that wouldn’t be my primary argument; it would be folded into a more general void-for-vaugeness arugment.

  45. 45
    burnspbesq says:

    @NonyNony:

    Given what you’ve said here (that money isn’t speech, just that it helps your speech get heard) explain now the other thing that you said (that Citizen’s United was correctly decided and that the campaign finance regime it overturned was unconstitutional).

    The short answer, in terms of First Amendment doctrine, is that there are less restrictive alternatives available. Like, for example, disclosure requirements.

  46. 46
    Ben Franklin says:

    23 Brands funding right wing attack ads……..

    http://thinkprogress.org/elect.....ttack-ads/

    …including LA’s Lakers, Kings and Galaxy (sigh)

  47. 47
    burnspbesq says:

    @Ben Franklin:

    It’s not exactly news that Phil Anschutz is a deep-pocketed wingnut who opens his pockets for wingnut causes. That said,I don’t think it’s entirely fair to lump the Lakers in with the Kings and Galaxy. They aren’t owned by Anschutz (unless he bought them from the Buss family recently), they just play in his building.

  48. 48

    […] “BREAKING: Matt Bai Is Wrong” Or, Matt Bai is wrong […]

  49. 49
    Joe says:

    we need a constitutional amendment that establishes corporations in a different legal status as people.

    Corporations are already in a “different legal status” from “people,” if “people” means human beings. Corporations don’t have the same rights as human beings.

    Corporations are not “citizens” under the Privileges and Immunities Clause. This was decided before the 14th Amendment was even ratified (Paul v. VA). Corporations don’t have the same privacy, self-incrimination, 8A protections (though I guess you can’t torture them either). See, e.g., Hale v. Henkel.

    Corporations can be limited by their charters. Regular people cannot be so limited — regular people have “liberty” by birthright, not by charter.

    In a narrow sense — merely because a “corporation” is present, you can’t limit speech — Citizens United was clearly correct. There was a portion about 30 days before an election that some on the left red flagged at the time too. Its judgment as to corruption as a compelling state interest (see the Montana law, which the local ACLU supported) is a different matter.

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