An opening for quid pro quo corruption? Issue advertising in Wisconsin judicial races before and after Citizens United.

• Author: Terry, Christopher

1. INTRODUCTION

   1. The Law

      In Citizens United v. FEC, (1) the Supreme Court curbed the ability of Congress to limit campaign finance, holding that federal law limiting independent political expenditures by corporations, unions, and other organizations violated their free-speech rights under the First Amendment. The decision marked a major turning point in campaign-finance law, striking down pieces of the Bipartisan Campaign Reform Act of 2002, (2) and overturning two Supreme Court precedents. (3) Citizens United immediately set off a debate about the underlying principle at stake--whether money is a corrupting force in politics. (4)

      Citizens United was concerned with issue ads, which do not come from the candidate's official campaign. Justice Kennedy's opinion for the Court rejected the notion that campaign donations were potential sources of corruption in most cases. He noted that not only did "few if any contributions to candidates ... involve quid pro quo arrangements," (5) but that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." (6) Yet Justice Stevens painted a different picture in dissent, asserting that "[t]he Court's ruling threatens to undermine the integrity of elected institutions across the Nation," (7) and that

      [t]he legislative and judicial proceedings relating to BCRA generated a substantial body of evidence suggesting that, as corporations grew more and more adept at crafting "issue ads" to help or harm a particular candidate, these nominally independent expenditures began to corrupt the political process in a very direct sense. (8) Indeed, as he pointed out, "[t]he sponsors of these ads were routinely granted special access after the campaign was over." (9)

      Two years later, American Tradition Partnership v. Bullock, (10) in which the Montana Supreme Court had upheld the state's Corrupt Practices Act and its contribution limits, (11) presented the Court with an opportunity to examine empirical evidence relevant to the potentially corrupting effect of campaign contributions. But rather than revisit Citizens United, the Court issued a short per curiam reversal, announcing that "Montana's arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case." (12)

      Taken together, these two decisions indicate that the Supreme Court has limited the government interest in regulating campaign contributions to the narrow area of "quid pro quo arrangements." (13) Thus, unless a donor receives an agreed-upon benefit in exchange for a contribution, the donation cannot be a corruptive influence sufficient to justify regulation of the free speech rights of the corporation, union, or other entity providing the campaign money. (14)

   2. Previous Research

      In two earlier articles, (15) the authors examined issue ads on Milwaukee radio stations to empirically examine whether any changes in the use of the ads--or in the ads themselves--were visible as the changes in campaign-finance law brought about by the BCRA and then by Citizens United began to take effect. We found close correlations between the changes in the law and the number of entities buying issue ads, the amount of money spent, and the number of candidate mentions made in the ads. (16)

      But if corruption is narrowly limited to quid pro quo arrangements, it seems unlikely that the general spending examined in those two studies would persuade the Citizens United majority that issue ads can have a corrupting effect. And, in fact, American Tradition indicates that it would not. (17)

      By looking at the broad range of issue ads in a wide range of elections, including for president, governor, U.S. senator, and U.S. representative, our earlier studies examined issue ads in elections in which, generally, the candidates themselves raised substantial amounts of money. Since the federal limits on contributions directly to candidates were unaffected by Citizens United, the issue-advertisement spending made up only part of the larger pool of money allocated to advertising in an election.

      To empirically examine the effect of issue advertising on an election in which something approaching quid pro quo arrangements would be more of a risk, it would be necessary to look at races in which this type of third-party spending--freed by Citizens United, both in allowing unlimited spending and, as importantly, the naming of candidates--made up the bulk of the spending in a campaign. We found that scenario injudicial races in Wisconsin during our period of study. While the relationship between outside groups and candidates for judicial office is subject to some debate, the potential for outside groups to influence an election in favor of a judicial candidate that they perceive to be (or hope to make) friendly to their positions substantially increases the potential for corruption.

      A discussion of any potential corruption from campaign contributions has been made more urgent by McCutcheon v. FEC, (18) in which the Court struck down ceilings under federal law applicable to the aggregate limits a donor can contribute to political candidates, political parties, and political action committees. Again limiting the scope of corruption to quid pro quo arrangements, the Court held that aggregate limits burdened the free-speech rights of donors without furthering the government interest in limiting corruption. (19) For any limitation on campaign finance to be upheld by the current Supreme Court, the government must be able to demonstrate that the law in question limits quid pro quo corruption. General influence of the type that concerned Justice Stevens (20) will not suffice.

      For that reason we now move away from questions about the relationship between politicians and friendly outside groups and seek to examine the relationship between outside groups and judicial candidates, a relationship that should not be taken lightly. Research has already documented a correlation between donations to justices in Wisconsin and favorable rulings in favor of campaign supporters in more than fifty percent of cases, as well as the reality that Wisconsin Supreme Court justices failed to recuse themselves in at least ninety-eight percent of cases in which one or more of the participants had donated to one or more of the justices' election campaigns. (21) As a result, an empirical examination of issue ads in judicial races, where the potential for something approaching the quid pro quo benchmark for corruption is great, would provide a focused inquiry as to whether there are corruption risks in this setting.

      In Part II we lay out the state of the law on campaign finance and the legal responsibilities of radio stations. Our questions and method are described in Parts III and IV. Part V and Part VI present our results and discussion, which track how the judicial races in the state of Wisconsin saw an increase in issue-ad spending by outside groups after Citizens United, and address the implications of this increase.

2. BROADCAST RADIO, ADVERTISING, AND THE LAW

   1. Political Advertising: The Rules

      Political advertising in broadcasting is divided into two major categories. Campaign advertising--as relevant to this article, advertising that originates with the official campaign of a legally qualified candidate for state office--is governed by the Communications Act of 1934, which requires broadcasters to provide equal access to advertising by opposing candidates, and to make candidates' ads available at the lowest price charged to commercial customers. (22) The second category of political advertising--non-candidate political advertising (generically referred to as "issue ads")--covers advertising that discusses a political issue but does not originate with the official campaign of a candidate for office. Issue ads are not given the same access and rate protections as campaign ads under federal law. Radio stations are not required to sell these ads, but a station accepting them is legally responsible for preserving the content of the ads that it sells and then clears. (23)

      Assuming that a broadcast radio or television station is willing to sell issue advertising, it will typically make a decision to carry issue ads at a pre-specified rate, and will then publish a rate card that identifies the prices for issue-advertising sales. (24) This information will be available, along with a list of advertisers buying issue ads, in the station's public file. (25) Licensed broadcast stations are required to keep information on all political advertising on file for a period of two years. (26) Stations typically keep this information--which is likely to contain pricing information for all parts of the day, some of which are more expensive than others--in their public files for no longer than the required two-year period. (27)

      Federal law relating to the airing of issue ads has changed back and forth in the last two decades, as the BCRA added additional limitations on this kind of spending that Citizens United then removed. One invalidated provision, the prohibition on "electioneering communications" made shortly before an election, (28) was in fact at the heart of Citizens United: Citizens United wanted to advertise and to release Hillary: The Movie, a documentary critical of then-senator and presidential candidate Hillary Clinton, within thirty days of a primary election. It sought a preliminary injunction against the FEC's applying the BCRA to television ads promoting the video and its release, arguing that the FEC's application of the provision to the ads would be unconstitutional. (29) The trial court granted the FEC's motion for summary judgment, holding the electioneering provisions of the BCRA constitutional in light of McConnell. (30) On direct appeal, the Supreme Court asked the parties to reargue and re-brief the issue of whether its earlier precedents...