Hate The Latest Political Ads? Don't Blame 'Citizens United'

As the presidential race slogs into the summer, there has come to be understood this one great truth: SuperPACs are dominating the landscape, and it's all because of the Supreme Court's Citizens United ruling that opened the floodgates to big money.

This truth, alas, is no longer so.

At least in the terms of the presidential race: SuperPACs are out, and Republican-leaning "social welfare" organizations are in.

The biggest buyers of presidential TV advertising in recent weeks have been tax-exempt groups like Crossroads GPS, founded by Republican strategist Karl Rove, and Americans for Prosperity, affiliated with the multibillionaire Koch brothers. Both are organized under section 501(c4) of the tax code, making them "social welfare" groups in the same tax category as a Rotary Club or a volunteer fire department.

Why the switch?

This is not entirely clear. The biggest six-, seven- and even eight-figure donors to superPACs have been notoriously shy about discussing their political giving. And we may never know just who the donors to these "social welfare" groups are, let alone why they are giving so much money.

But that last bit of missing information might be the best explanation. Unlike superPACs, which must disclose their donors to the public regularly, the politically oriented social welfare groups need not release their fundraising and spending totals until months after the election is over — and they need not reveal the identities of their donors ever.

To avoid endangering their tax status, these groups have been sticking with "issue advocacy" advertising that does not directly support or attack a candidate. That means the TV airwaves in swing states will continue to be full of ads slamming President Obama and urging viewers to contact him and tell him what a lousy job he's doing.

All this secret spending, though, is not due to the 2010 Citizens United decision. In fact, the ruling in Citizens United specifically endorsed the idea that the donors behind these outside spending groups should be made public.

If there is any one entity to blame for tens of millions being spent anonymously to influence the election, it is the Federal Election Commission, which on its own decided to weaken the disclosure requirements of the McCain-Feingold law — even though Citizens United had specifically upheld that portion of the law. It was not until the FEC had watered down the disclosure rules that the real flood of cash began — suggesting that many of the donors would have remained on the sidelines if they knew their names would be made public.

Recent federal court rulings could force these groups to start disclosing as Election Day approaches (that is, if those rulings themselves are not overturned before then).

But if that happens, some "social welfare" group leaders have indicated they may substitute ads directly endorsing or attacking candidates — exploiting a different FEC loophole to avoid disclosure — with the hope that the overall mix of ads does not cause tax-status problems with the IRS.

S.V. Dáte is the NPR Washington Desk's congressional editor.

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