Melissa M. Smith - Dark Money, Super PACs, and the 2012 Election

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Melissa Smith thanks her two favorite guys, Barry and Matthew, for their love and support. I appreciate your patience while I spent hours working on this very fun project. Matthew, now we can go outside and play.

Larry Powell would like to thank his wife, Clarine Powell, for her tolerance as he obsessively worked on something that he enjoyed doing. He would also like to express his appreciation to Dr. Mark Hickson for his inspiration, leadership and motivation.

Things got off to a rocky start for Democrats on January 19, 2010, when Republican Scott Brown was unexpectedly elected to the Senate seat that Ted Kennedy had held for almost half a century. Browns election triggered concerns among Democrats going into a midterm election year, because midterm elections have traditionally been dangerous to members of the party in power at the White House. Some wondered if this was a one-time anomaly or a sneak-peek at fall elections.

Just two days later the United States Supreme Court released its opinion on the Citizens United v. FEC case, setting the stage for what would be known as Super PACs to begin forming in support of 2010 Congressional candidates. While Republicans embraced the ability to form Political Action Committees fueled by unlimited corporate and union funds, Democrats opposed the ruling, stating fears that it could unleash a tide of corporate and special-interest money into the political process.

As it turns out, Browns election was a harbinger of things to come for Democrats that year, as most shied away from using Super PACs, while Republicans embraced them. What ensued has been described as a disaster and a crushing defeat for Democrats, as the party lost sixty-three seats in the House of Representatives and six in the Senate.

While it may seem odd to start a book discussing the 2012 elections a full two years earlier, it is important to understand how pivotal the 2010 elections were for the Democratic Party and how Democratic losses set the stage for an increased presence of Super PACs in the 2012 race. In some ways, the Democratic response to the United States Supreme Court ruling in the Citizens United case was an example of a political party refusing to participate in a major change of rules in the election process. This refusal, and its impact on the elections, taught the party a hard lesson that many vowed not to repeat in 2012. This chapter will examine the Citizens United ruling, as well as the SpeechNow.org v. FEC case, both of which helped pave the way for Super PAC formation. It will also examine the responses of both the Republican and Democratic parties in the first federal elections held after those rulings.

In Citizens United v. Federal Election Commission, the court considered whether an anti-Hillary Clinton documentary produced during the 2008 presidential campaign violated restrictions on corporate spending in federal elections. The documentary was produced by Citizens United, an ideologically based group that takes for-profit corporate funding. The group wanted to air the documentary during the Democratic Party primary through a cable television video on demand service and sponsor advertisements for it on television. A cable television operator consortium would have made it available (in exchange for a $1.2 million fee) free on demand as part of an Election 2008 series.

The FEC blocked the move, saying it was basically a long political ad promoting the defeat of a specific candidate, plus it had been produced by an advocacy group that had accepted corporate contributions. The Bipartisan Campaign Reform Act of 2002 barred corporate-funded television broadcasts just before both primaries and general elections. The FEC ruling was challenged by Citizens United, which argued that it limited the constitutional speech of corporations, unions, and trade organizations.