"A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today," the Supreme Court said in its Citizens United decision. But, "with the advent of the Internet, transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages." The lower court affirmed the validity of disclosure.
But it hasn't exactly played out that way. And January 2012 in presidential politics in particular has conspired to show how far we are from the Supreme Court's wired utopia.
When it comes to timing, the key here is that while campaigns and super PACs alike have to disclose what they're spending on "independent expenditures" right away -- that's how we know, for example, that super PACs have already dropped $44 million on ads by super PACs this cycle, and that information is quickly put up online at FEC.gov and used by groups like OpenSecrets, MapLight, and The New York Times API -- super PACs are allowed to disclose who is paying for those ads at a far more leisurely pace. And, in December, clever election lawyers at super PACs associated with Romney, Gingrich, and Huntsman switched filing from four times a year to once a month. (It was barely a formality; the pro-Gingrich superPACs letter was all of 19 words.) "Normally, switching from quarterly to monthly is a good thing, because you're getting more disclosure," says the FEC's Weintraub. But here, it had all the grace of breaking up with your girlfriend right before her birthday. If you file four times a year, you see, you also have to file before each primary. Monthly filers, though, can skip that step.
The filing schedules are decades old, dating back to when primary season stretched far longer. And in the pre-Citizens United era, no one thought much about it. "There's only so much influence you can buy for $5,000," says Weintraub.
What all that calendar shifting meant, in practice, is that the super PACs bought themselves until tomorrow to file with the FEC for the first time this year. What's more, that disclosure will only cover who gave what through the end of December. We won't know until the end of February who funded advertisements in the front-loaded portion of primary season -- Iowa, New Hampshire, South Carolina, and Florida. By that time, Nevada, Maine, Colorado, and Minnesota will have wrapped their candidate selection, too. "There's been some concern," says Weintraub, "that this whole thing could be over before the reports have been filed."
Other factors of modern politics are critically important here, too. The information-saturated, media-driven political landscape has changed what it means for a super PAC to run independent of a campaign. "The court has put more weight on that distinction between coordinated and independent than that distinction can bear," Weintraub says. What counts as coordination is a fuzzy question when candidates and their surrogates are constantly laying out their talking points in countless tweets, debates, interviews. The Obama campaign has, for one, made a specialty of distributing online strategy-briefing videos. "Why," asks Weintraub, "do you need to have a conversation to figure out what would be useful for them?"