Citizens United != Super PACs

It's bizarre to me that so many people link Citizens United with the rise of "Super PACs." In fact, what makes a "Super PAC" legally possible is almost completely unrelated to Citizens United.

It's actually legal through a case called Speechnow v. FEC, which says quite simply that an independent group making independent expenditures for political speech cannot be limited in contributions to, or expenditures from, that group. This is obviously protected Free Speech: government cannot, for the purposes of limiting your speech, limit your money, because that is a de facto restriction on speech itself. Citizens United was cited in the case, but the case would've stood without it.

It's bizarre to me that anyone would have a problem with this. Ross Perot and George Soros can spend millions, even billions, of their own money to influence elections, but less-affluent citizens can't pool their resources to do the same thing? That's just nuts. So Speechnow was essentially inevitable.

What Citizens United did is say that a corporation -- not a PAC -- can spend unlimited dollars on a campaign. This includes contributing to a "Super PAC": that is where the two cases overlap, but the decisions are independent.

The one criticism I have sympathy for, regarding these rulings -- Speechnow in particular -- is that Super PACs are not subject to the same strict reporting requirements, such that we don't really know where all of the money is coming from. I think this is a good and necessary thing: anonymous political speech, including anonymous publishing of the speech in question (which is essentially what the anonymous contributions facilitate) is a hallmark of our republic. But I also understand that because of the problems of money in politics, disclosure can be an important tool for the electorate.

Frankly, I've been thinking lately we should work to encourage disclosure, rather than mandating it. We could even have laws about how disclosure is done, if it is done, to discourage dishonest disclosures. But if a committee wants to remain anonymous, so be it. Regarding such committees that don't do disclosure, TV stations could choose to not broadcast ads from them; news outlets could choose to refuse to reference their ads; donors could take a pledge to not contribute to them; and so on. We can solve this without laws, and thereby protect our right to anonymity while greatly discouraging it.

Disclosure issues aside, however, it still seems obvious to me that you cannot, while respecting the First Amendment, limit someone's expenditures for the purpose of limiting their speech. The First Amendment says No, and it also says that -- given that we have rights to assembly and petition -- that when we come together in groups, we still have our right to speech as a group.