Harper’s Magazine is known for it’s Harper’s Index, a collection of various factoids that is supposed to shed some great meaning on life. Their latest is that 72 percent of political ad spending in 2010 would have been illegal before Citizens United. This is being “tweeted” and “retweeted” all over the place. There is just one problem – the number is patently, egregiously, false, by any measure.
Let’s look at some real numbers.
According to the Federal Election Commission, which is where candidates must file their spending and fundraising reports (not at Harper’s -really), in 2010 candidates for U.S. Senate and House raised just over $1.859 billion Democratic Party committees – federal, state, and local – raised a little over $600 million, and Republican Party committees a bit under $550 million, for use in federal elections. That totals up to just over $3 billion all told. All of that money – every penny – was legal before Citizens United, because Citizens United did not change any of the laws governing contributions to candidates and parties.
Total independent spending by traditional PACs was just under $68.5 million. All of that – every penny – was legal before Citizens United, because Citizens United did not change any of the laws governing contributions to or spending by traditional PACs. Total independent spending by “Super PACs” and other entities, rounded off, totaled $140 million. Some of that spending would have been legal before Citizens United – that is, all spending funded by individual contributions.
Let’s add that up: $1.859 billion + $600 million + $550 million + 68 million + 140 million = $3.217 billion. Percentage that was illegal before Citizens United? Some portion of $140 million. Let’s say – though we know it isn’t true, but we’re bending over backwards to accommodate the math challenged Harper’s crew – that all $140 million of independent spending by Super PACs and other entities would have been corporate and union spending illegal before Citizens United. That would get you to 4.4%, or, give or take some rounding, eighteen times less than Harper’s claims.
But maybe Harper’s is including state and local political spending – could that be it? Well, no. Data on total state and local spending is less easily determined than federal spending, but it pretty clearly isn’t going to make Harper’s number even close to real. For example, the National Institute for Money in State Politics (which, despite its lofty sounding name, is just a pro-regulation campaign finance group) estimates that all told, approximately $3.5 billion was spent by all state and local candidates in 2010. Again, all of this would have been legal before Citizens United, which did not change any laws on campaign contributions to candidates and committees.
If you take $3.5 billion in state spending and $3.1 billion in federal spending which was all clearly legal before Citizens United, you would have to have over $13 billion in independent spending in state races to reach Harper’s preposterous 72 percent figure, assuming (which would not be true) that every single penny of that would have been illegal before Citizens United. That would be 250% of candidate and party spending. How likely is that? The Institute has a series of state by state reports out on 2010. They found that all independent spending in Texas in 2010 amounted to just one percent of the amount given to candidates and committees. In Ohio, the percentage was 11.5%. Furthermore, remember that even before Citizens United 26 states allowed unlimited corporate spending in elections, and two more allowed limited corporate spending. So you are really talking 22 to 24 states that would have to account for that $13 billion. And two of the biggest – Texas and Ohio – clearly aren’t helping. Never in history has spending on state and local political campaigns ever approached $13 billion in any election cycle. Never has it been within one tenth of that amount. Ever.
The reality is that anybody who knows anything about campaign finance knows that Harper’s 72% number is a pure fiction. Nevertheless, people such as Harvard Professor Larry Lessig, a very smart man who ought to know better, have tweeted or retweeted this number. It’s popping around the internet on Facebook and such.
Now, let’s be clear – if over 70% of 2010 ads would have been illegal before Citizens United, we would consider that pretty strong evidence that Citizens United was both correct and necessary. And let’s also be clear that we think that Citizens United was an important decision. But the disinformation that keeps coming out about Citizens United is getting incredibly tiring. If you really hate Citizens United and think it was wrongly decided, you ought to at least have some realistic grasp of the problem.
So how did Harper’s come up with a number so totally divorced from reality? Harper’s claims the number comes from the Center for Responsive Politics, although they give no cite beyond that. But the Center for Responsive Politics has never made any such claim that we can find. (We have contacted the Center and asked them if they could figure out the source for any such claim. We’ll update if they can figure it out. We have our disagreements with the Center, but on data reporting, they’re reliable. See update below.) Other sources seem to be saying that 72 percent of independent spending in 2010 came from sources that would have been illegal before Citizens United. But even that doesn’t appear to be from CRP. Rather, in March of 2011, CRP reporter Michael Beckel noted that corporate spending accounted for approximiately 17 percent of total independent spending at the federal level, which would make it approximately three-tenths of one percent of total spending – suggesting that Harpers is off by a figure about 237 times the actual amount.
What about those other sources claiming 72 percent of 2010 independent spending would have been illegal before Citizens United? In this article, the thoroughly left-wing Nation claims such a number, and cites as its source yet another campaign finance “reform” group, the Committee for Economic Development (CED). But the report the Nation links to doesn’t include that number anywhere.
Making the whole thing even worse is that certain expenditures which might have been illegal before Citizens United had ready alternatives. For example, the CED report lists numbers for total spending by some 501(c)(4), (c)(5), and (c)(6) groups (non-profits, unions, and trade associations) which may have been illegal before Citizens United because they contained “express advocacy,” that is words such as “vote for” or “vote against.” However, before Citizens United those same groups could have run the same ads except concluding with “Call Representative _____ and tell him his agenda is wrong.” For years, of course, reformers argued that those ads were effectively no different – in fact, in Wisconsin Right to Life v. FEC, a forerunner of Citizens United, they argued that ads without such “express advocacy” were more effective than ads that did specifically urge people how to vote.
But there’s no need to go further into the weeds. Harpers number bears no relation to reality. Period.
Given the extent to which Harper’s Index is quoted, we expect the 72 percent number will soon enter the lore of urban legend. Harper’s owes its readers an immediate correction.
Update, 2/22, 1:45 p.m.: The Center for Responsive Politics believes Harpers misunderstood a blog post from May 2011 stating that 72 percent of spending by “outside groups” came from sources prohibited prior to Citizens United. This makes more sense, although it should be noted that it, too, greatly overstates the impact of Citizens United, because it includes all spending by 501(c)(4), (c)(5), and (c)(6) organizations. As noted above, much of that spending could have been done prior to Citizens United, using a slightly different message. And in that respect, it points up another benefit of Citizens United; it allows such organizations to be more honest in their messaging (yes, we want to vote against Candidate X, not just call him up; Yes, we want you to vote for Candidate Y).
Harpers? They just blew it. CRP? Their data has been abused, and we understand that they have asked Harper’s for a correction. Professor Lessig? Should never have retweeted such an egregious and obvious error.
Update 2/23, 3:40 p.m.: Harper’s has issued a correction.
