Citizens United: The Good, The Bad, and the Mostly Ugly

Three years ago this week, the Supreme Court handed down its decision in Citizens United. Two election cycles later, it is worth pausing to consider the consequences of that momentous decision for electioneering specifically and the representative process more generally. As both a scholar of congressional elections and as an active observer of the recently concluded Montana Senate race—which saw more than 90,000 television advertisements aired over a fivemonth period—I have a unique perspective to share. The decision written by Justice Kennedy was momentous in how it transformed the political landscape, but the effects are not all bad as some contend.

First, the good news. Generally speaking, campaigns are about disseminating information to a generally disinterested and disengaged electorate. Money spent on advertising provides information to voters, and the more information voters receive, the more likely they are to participate in the political process. Many voters express disgust with the sheer amount of advertising in an election, but the simple fact of the matter remains that competitive elections with lots of spending generate more voter interest and involvement. One of the benefits of campaigning in the world of Citizens United is there are more avenues for information to reach the voter because anyone can—and has—form a group to raise and spend money to influence elections. For example, in the Montana Senate race alone, more than $50 million was spent during the campaign cycle. Of that amount, less than half was spent by Democratic and Republican candidates. The rest was spent by political parties and various 501s. The result of all that information? A rich and thick information environment. More voters cast ballots in the Senate race than in the presidential race (not a single ad aired for either Mitt Romney or Barack Obama in Montana), demonstrating that more information reduces the barrier to participation and helps voters make decisions.

More money equals more political information, but is all that information beneficial to democratic process? One of the very clear downsides of the Citizens United decision is increased access to the campaign process has led to a lack of control by the candidates, political parties, and citizens who have to live with the results after Election day. Money does matter in elections, especially when one side has superior financial resources and employs them in an otherwise low information environment election. Consider the case of California’s 35th district. Because of California’s primary law that allows the top two vote getters to move onto the general election, two Democratic candidates faced off in the general election: incumbent Congressman Joe Baca and State Senator Gloria Negrette McLeod.  One of the most important voting cues is party identification, but in this instance that cue did not differentiate the candidates. Joe Baca, the incumbent, was widely anticipated to win the election and yet, at the very last moment, Mayor Bloomberg’s Independence USA PAC dropped more than $3.3 million into the race on mailers and television attacking Baca. Why? Because Baca was supported by the NRA and voted against gun control measures. When voters were paying attention they received a considerable information boost from all of this money and a sure bet for Baca was turned into a loss. Citizens United increases the ability to use money to influence elections—especially by outside groups.

The most troubling aspect of Citizens United is not that labor unions and corporations can spend money on electioneering and issue advocacy, as some suggest. It is the complete and utter lack of transparency in the Citizens United world. This is certainly ironic, given the fact that Justice Anthony Kennedy himself wrote in his decision that “prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters”. The fact of the matter is we, the voters, have no idea who the groups peddling information to us are and we don’t know which individuals support them. Congress and the Federal Election Commission have been unable and unwilling to act by establishing disclosure rules for the sundry 501s engaged in electioneering activities outside of the 60 day window of before an election. Citizens can find out how much money is spent on television or radio advertising if they care to visit those stations in person by requesting the political file—a daunting task in Montana, where stations are spread across thousands of miles. Of course, there’s still all the money spent on grassroots organization, Internet advertising, and phone calls outside of that sixty day window—how much and by whom, we may never know. Some groups, like the Sunlight Foundation, are doing yeoman's work tracking as much of the dark money as they can, but there's only so much even they can do with their resources to track down everything.

Although attorney Jim Bopp’s assertion in a recent Frontline special about dark money that most voters don’t care about where that money is coming from is likely true, the consequences of anonymous speech for political discourse are troubling and should cause voters to take notice. Anonymity breeds bad behavior. Hiding behind the veil of secrecy, groups and individuals are more likely to be more negative and play more fast and loose with the facts than if they were held responsible for their actions. We saw it time and again during this election cycle. Groups set up shop with a P.O. Box, launch a bunch of scurrilous attacks, and then disappear. Fact of the matter is these groups are accountable to no one, unlike the candidates and political parties who must put the pieces back together and try to govern after elections. The stealthy nature of these organizations make it less likely for candidates and parties to take risks and compromise for fear they will be brutally assaulted out of nowhere in the next election cycle.

No Transparency? More Negative and More Nasty Ads

Unregulated Speech: From an ad sponsored by the Now or Never PAC

Nasty speech: From an Internet ad sponsored by the American Bridge to the 21st Century

At the end of the day, Citizens United—as a decision—opened the floodgates to more money and more information in the political process. Whether that information is good and beneficial to democratic discourse is an open question, however, when juxtaposed against the very fact that much of the information flooding the system is peddled by groups with no responsibility to the political process or the hard task of governing in an environment that has become increasingly fragmented and polarized—in large part because of the money raised and spent by these very groups. At the end of the day, I live in a state where the Senate race was decided in part by the millions of dollars raised and spent by outsiders who never met Jon Tester or Denny Rehberg, and are not accountable to Montanans. In a state that is suspicious and often resentful of the influence of outside interests, this should be very troubling indeed.

2014 Really is ON!

Last night I got a "marketing poll" that asked a bunch of questions about the upcoming legislative session.

And they asked about the 2014 Senate race, wondering if I would be voting for Max Baucus or....Steve Daines.

Daines clearly has the desire to be a senator. Recall that he announced right after the 2010 elections he was a candidate for the Republican nomination in 2012. And--then he jumped to the House when Rehberg announced he was running for the Senate.

Will Daines run against Baucus? In some ways, he's the most obvious choice for the GOP. But in other ways, it is a risky bet. Daines has a lot to learn about governing, and he won't have time to do that if he has to throw together a Senate campaign. He'll have a voting record that--while short--will still allow Baucus to go after him in a way that Gillan couldn't during this election. Daines can raise a lot of money--but if you think the $10 million plus raised by Tester was a lot, watch out. Baucus, as chairman of the Senate Finance Committee, can command incredible resources. His war chest will be enormous, and I'll bet we will start seeing ads soon.

Daines' best bet would be to lay low, work hard, and wait for an open seat. Baucus is not young, and if he is reelected, this might be his last term.

Voter Fraud in Montana's Senate race? Not so much.

In a recent article published in Explore Big Sky, Gallatin County Vice Chair Tammy Hall made the claim that Tester may have won because of vote fraud. Here’s the part of the article that's relevant:

"Tammy Hall, first vice president for Gallatin County Republican Women, felt the local Republican effort to get out the vote was strong, but said voter fraud in the county was a factor in the outcomes.

“When you’ve got 8,000 people registering to vote on the same day, you’ve lost control,” said Hall, also one of 22 delegates representing Montana at the Republican National Convention in August."

As a political scientist, there’s nothing more annoying than someone who lobs into the body politic claims of voter fraud without a shred of empirical evidence with which to back the claim. Trust is vital in republican government, and without it, our elected officials cannot hope to government. Part of the reason Congress cannot function is the historically low-levels of trust voters have in the institution. Claiming voter fraud when your candidate or party doesn’t win—instead of engaging in a profound retrospection based upon real data—does not help matters. And it certainly doesn’t help your party or candidate plan for the next election if you just put your head in the sand and scream that the other side cheated.

Voter fraud is serious business, but it can be detected using some rather simple statistical tests. Walter Mebane, a political methodologist at the University of Michigan, has written extensively on the matter. Go to his website and see his research. In a chapter in the book Election Fraud (edited by Mike Alvarez, Thad Hall, and Susan Hyde), Mebane proposes the use of a simple statistical test, called the Second Digit Benford’s Law Test for Vote Counts, to detect the likelihood of fraud. Simply put, the digits in a group of numbers are likely to have a particular distribution. Mebane explains:

“Benford’s Law states that in a list of statistical data, such as vote tallies from different precincts, the digits of the numbers that make up those data points follow a specific distribution. In each significant digit position, smaller numerals appear more often than larger numerals. In a set of data that follow Benford’s Law, the first significant digit is the number 1 roughly 30 percent of the time. There is what I call a second-digit Benford’s Law (2BL) distribution when the first digits have no particular pattern but the second digits of the data points do follow the pattern given by Benford’s Law. In this case the second significant digit is 0 (zero) about 12 percent of the time” (Mebane 2008).

Very simply put, if we see variation from the Benford’s law in the distribution of the second digit in precinct level vote returns, we have possible evidence of voter fraud. It is not proof of fraud, but it raises the possibility that monkey business may be at work.

Because I’m not a political methodologist and not as smart as Mebane, I searched the web for a routine that would allow me to examine precinct level data in a statistical software package political scientists, economists, and sociologists use called Stata. I found such a routine called Digdis. I installed the routine, downloaded precinct vote totals for the Senate race from the Montana Secretary of State’s website, and ran a quick analysis on the second significant figure of the precinct totals. Here’s a screen capture of the Stata output:

The data show the number of 1-9 digits in the second significant position, the percent expected value in the distribution according to Benford’s Law, the variation from that expected percentage, and the statistical significance of said variation. In no instance does the difference in the expected value from the actual value rise to conventional levels of statistical significance (p<.05).

In other words, across the 794 voting precincts, the vote totals reported in the Senate race show NO STATISTICALLY DISCERNIBLE EVIDENCE OF VOTE FRAUD.

Before screaming about fraud, it might make some sense to learn a little about the likelihood of it and build a solid empirical case based upon quantitative evidence to demonstrate some proof of those claims. To paraphrase Dan Rather, voter fraud in the Senate race? “That dog just don’t hunt”.

The 2012 Senate Race is Over. Now here comes 2014!

My readers know that I've spent the past 22 months following the Tester-Rehberg race here in Montana very closely. As things began to heat up and more of my time became taken up by the race, it became clear to me that blogging during the campaign--as much as I wanted to--became too much to undertake both personally and professionally. I felt that what I had to say could wait until the book and many of my observations (profound or not will be for you to judge) about that incredible experience can be found there. I will likely try out some of my thinking about the race as I write in the upcoming months here, but there's so much else to write and talk about!

Now that Senator Tester has been reelected, the other Senate race has begun: Max Baucus' pursuit of a seventh term in office. It is clear that as of November 2012, he has some work to do. PPP conducted its last poll in the Tester-Rehberg race on November 4th.

 Here's what Jon Tester's job approval rating was in that poll:

47% Approve
46% Disapprove

Tester's job approval rating in November of 2010 in PPP's poll was:

50% Approve
40% Disapprove

PPP asked voters about Max Baucus in both those polls. Here's what they thought:

Max Baucus November 2010                                                Max Baucus November 2012
38% Approve                                                                       41% Approve
53% Disapprove                                                                   44% Disapprove

Jon Tester was right side up by ten points in his approval ratings two years prior to his reelection in a brutally competitive race--and he managed to stay right side up in the final days despite an onslaught of negativity over 16 months. Max Baucus is already underwater--and while his job approval numbers have improved over the past two years, it is absolutely clear he's got a tough road ahead. The $64,000 question is whether Republicans will field a strong candidate against him. Stay tuned. Montana politics is never dull.

Outside Spending in the Montana Senate Race and a Mea Culpa

A week and a half ago, I did an interview with the Wall Street Journal about the U.S. Senate race here in Montana. In that interview, I was quoted as saying the outside money in this race has been 2 to 1 in favor of Denny Rehberg. I was quoted accurately, but it would appear that the 2 to 1 ratio I mentioned was exaggerated. I had gathered some data from television stations in mid-June, and when I looked back at that data, it appeared that my memory had failed me. The number is closer to 1.4 to 1. I should also note that those data are spotty—there are some gaps, and they do not include spending that’s taken place on the airwaves since mid-June. I’ve been given access to additional broadcast advertising data from two independent sources. According to that information, I can safely conclude the following:

 

      1.  Outside spending on broadcast advertising is overwhelming the spending by the candidates. I define outside spending is spending made any organization that is not a political party or one of the candidate’s campaigns. 

       2. Outside spending indeed favors Congressman Rehberg. That is, there have been more money spent attacking Senator Tester or promoting Congressman Rehberg than money spent attacking Congresman Rehberg or promoting Senator Tester.

  

      3. How much that spending advantage for Rehberg is not obvious. The advantage is somewhere between $350,000 and $1 million as of the end of July and the first week of August. This includes spending going all the way back to spring of 2011, when the first advertisements appeared in this race attacking Congressman Rehberg (on environmental issues) and supporting Senator Tester on the debit-credit issue. I can’t nail the spending gap down more precisely as it is not clear from the numbers that I have access to do not always compare apples to apples, and sometimes it was hard to disentangle broadcast dollars from cable and radio spending.

In short, I was wrong. The 2 to 1 spending gap is just not true. I apologize to my readers for this mistake.

I want to take this opportunity to stress a larger point. It is really, really hard for scholars, journalists, and the public to figure out who is spending what and when in a campaign while it is ongoing. Television stations are required by the FCC to keep records on hand about the advertising of a political nature done on their stations. The files each station keeps, however, differ and not necessarily standardized. Some stations had all the data on spending in 2011 and 2012 available to me—others did not. Some stations had their files up-to-date, other stations did not (and note, sometimes it was for a reason outside of the station’s control—the person responsible for the files was ill or on vacation—and not an obvious attempt to avoid the reporting requirement). The folks who actually know how much is spent—and have up-to-date information—are Kantar Media based in the Washington, DC metro area. These folks use satellite tracking technology to follow all advertisements aired nationally. They do this to make sure that ads which are placed are actually aired. Companies and campaigns can purchase data from this organization to track spending in particular media markets—and most do. The problem, of course, is that the public does not have access to this proprietary data. While Kantar often does provide information to newspaper reporters and their data has been available to scholars in the past, the public—who needs this information the most—doesn’t have ready access to it. This is not a knock on Kantar—it is, however, further evidence that our disclosure laws have to be brought into the 21^st century. Whatever your stance on Citizens United, it is essential in our democratic process for citizens to know who is sponsoring what advertisements on television so they can make an informed judgment concerning the value of the message being transmitted. We are not talking about selling pizza or soap here folks, but rather public policy and our democratic ideals. The buyer should beware—and to be properly skeptical, we need to know who is behind the campaign advertisements we see and use to make our decisions at the ballot box.

Montana Senate Race: Fundraising and Outside Spending

I'm back from a trip to Indiana and the great Midwest. While away, the Montana Senate race did not wait for me. Indeed, a lot happened--including new ads, the release of 2nd Quarter Fundraising numbers, and much, much more.

A quick update for now. Last quarter, Congressman Rehberg matched Senator Tester's fundraising totals. This quarter, Senator Tester nearly doubled Congressman Rehberg's haul: $1.9 million versus $1.1 million. Senator Tester won the quarter, but both candidates continue to rack up impressive sums of money. For those of you keeping track at home, here is a quick graph of fundraising to date:

Fundraising in Montana's 2012 Senate Race by Quarter

Data obtained from candidate press releases and the Federal Election Commission.

What is perhaps more interesting is the fact that both Senator Tester and Congressman Rehberg, despite potentially breaking fundraising records here in Montana, will likely get outspent on television by outside interest groups. A couple of weeks ago, I traveled across the state to review the political files at Montana's television stations to try and figure out how much money is being spent on this race (and thanks very much to the staffs at those stations--your courtesy and helpfulness were just wonderful). Guess what? My conservative estimate is that 68% of the money spent on broadcast television advertisements is by interest groups. In other words, of the $6.8 million spent on television broadcast ads, more than $4.6 million was NOT spent by the parties OR the candidates running for the seat.

This is a CONSERVATIVE estimate and only counts money spent between March 2011 and mid-June 2012. Some spending is missed, and because there is some variation based on how each station keeps its records, I had to fill in some gaps with estimates. It also does not include money spent on cable advertisements, internet advertisements, grassroots organization, radio, mail, or phone calls. It only represents advertisements on broadcast television stations in Butte, Bozeman, Great Falls, Helena, Billings, Kalispell, and Missoula.Because there's been so much outside money, the tone of the campaign has been quite negative. The literature and campaign tracking projects like CMAG, the Wisconsin Advertising Project, and the Wesleyan Media Project all show that outside groups almost universally air negative ads when they spend money. The effect of Supreme Court decisions Citizens United and Wisconsin Right to Life have been crystal clear in Montana.

Montana, we ain't seen nothing yet. The fall will bring more ads, more spending, and more attempts to influence our choices at the ballot box. Get ready for a fun ride.