Political campaigns go to great lengths to draft the perfect political message and present the most appealing image of their candidates. But outside influence has always clouded the voter's perspective. During the country's infancy, that blurriness was partly due to the amount of liquor those candidates served up for their constituents come election time. Campaigns called it "swilling the planters with bumbo." When George Washington first ran for the Virginia House of Burgesses in 1755, he opted for a more puritanical approach and skimped on the booze. He lost. Three years later, he ponied up roughly 160 gallons of rum, cider and beer for several hundred voters. He won.
The picture's even muddier today, due not to the lavish wining and dining by the candidates but by the volume of outside interests. Third parties are exercising their own influence over the voter with ever-increasing amounts of cash, twisting sound bites and distorting voting records through an endless mirage of television ads, radio spots, mailers and websites. The past year has seen unprecedented levels of political spending and an unparalleled lack of transparency. The candidates' own messages have often been hijacked by outside groups with deep-pocketed donors. The result is messaging that becomes warped and fractal. In 2012, voters may as well be watching the campaigns through a kaleidoscope.
"We're seeing a lot more by groups like Crossroads GPS and Patriot Majority and some others that just don't disclose their donors," says Bill Allison, editorial director for the Sunlight Foundation, a Washington, D.C.-based nonprofit dedicated to pushing for more transparency in modern campaigning. "Citizens just have no idea where the money is coming from that's behind these ads."
Much of the blame for this fractured new political frontier has fallen on the U.S. Supreme Court's January 2010 ruling in Citizens United v. Federal Election Commission. That decision freed labor unions, trade organizations and corporations to spend unlimited amounts of cash on political speech. Citizens United was narrow, however, and had little bite without the ruling issued two months later by the D.C. Circuit Court of Appeals in SpeechNow.org v. FEC. The court's finding lifted existing limits on contributions to certain political action committees and opened the door for tax-exempt organizations to accept unlimited cash.
"It's that case that said that unions and corporations could give without limit to what are called independent expenditure PACs," says Jim Lopach, a University of Montana political science professor specializing in constitutional law.
In short, the two cases combined helped create the now-infamous super PAC, and gave rise to an era of what many call "dark money."
These outside influences have already taken a noticeable toll on Montana's Senate race, where Democratic incumbent Jon Tester is facing off against Republican Congressman Denny Rehberg. Both candidates combined have raised just over $15 million, and have spent around $8.7 million. Third party organizations have, by comparison, spent well over $11 million. Much of the time, where that money's coming from is anyone's guess.
An old staple
In mid September, the National Republican Senatorial Committee launched an ad attacking Tester for supporting an estate tax levied on property inherited in the event of a relative's death. The ad featured fourth-generation Billings rancher Turk Stovall, who visibly choked up when talking about the financial burden placed on his family after his father's death in late 2011. "Since we're getting taxed by him dying, we could lose the whole outfit that him and my mom spent a lifetime putting together," Stovall says in the ad. Stovall went on to claim that Tester had voted for the estate tax, and that "he's voting for his party, not Montanans."
The NRSC spent nearly $136,670 on the ad, which was also packaged for radio and a shorter televised version.
The estate tax, or "death tax" as it's commonly referred to by conservatives, has been a favorite talking point of Rehberg's during the current campaign. He's shared his own story about the Rehberg family ranch getting heavily taxed in the wake of his great-grandmother's death. The claim was challenged in a recent High Country News feature, which quoted court documents indicating the family paid 17 percent of the estate's value—about $32,000when Rehberg's grandmother died in 1974. HCN went on to report that, following the death of Rehberg's great-grandmother in 1976, there's "no indication that an estate tax was paid to the feds."
The NRSC has spent more than $1.6 million since last fall on ads attacking Tester on a variety of issues, from his support for the Affordable Care Act to his votes on several key budget proposals. One of the PAC's first ads, aired last September, was pulled by at least one cable station for containing a factual inaccuracy.
The problem with the NRSC's most recent ad, beyond inflating Rehberg's own message about the "death tax," is that it misconstrues Tester's voting record on the issue. Tester voted this year against repealing the estate tax, instead supporting a measure to extend the Bush-era tax cuts through the end of 2013. Currently, only estates valued at more than $10 million are subject to the estate taxa cap that drops to $1 million if the current tax cuts are allowed to expire this year. Moderates hope that an extra year can buy more time for the parties to reach an agreement on what, exactly, the cap should be.
Groups like the NRSC are a staple in politics and have been around since long before the curtain fell on Citizens United. Political action committees are subject to contribution and expenditure limits, but they operate outside the confines of official campaigns. Trade groups, unions and businesses use them to contribute big dollars to candidates they favor; for example, business-oriented PACs have donated $1.5 million to Tester in 2012. Political parties use them to bolster spending done by candidates on their side of the ticket, as the NRSC did by donating $590,000 to the Montana Republican Party in June. The boost helped fund a $310,000 ad buy touting Rehberg as an "independent thinker" within the GOP.
Some candidates operate their own leadership PACs in order to influence other races at home and elsewhere. Rehberg's Building Our Opportunities Together PAC has spent $7,500 this cycle supporting fellow Republicans Scott Brown in Massachusetts and Dean Heller in Nevada. Heller was listed among the special guests at a $500-per-person Rehberg fundraiser at the NRSC headquarters in D.C. on Sept. 13.
The growing negativity in political advertising has led to PAC-sponsored ads, like the one featuring Stovall, that distort reality or hinge on half-truths. A May study of the tone of political ads, conducted by the ad-tracking Wesleyan Media Project, revealed that the ratio of negative ads to positive ads in presidential races alone jumped from 9 percent in 2008 to 70 percent in 2012. Candidates are often powerless to stop such messaging.
The NRSC's cross-aisle cousin, the Democratic Senatorial Campaign Committee, has similarly distorted the truth in 2012. The group consistently knocks Rehberg in television advertisements for voting himself Congressional pay raises five consecutive times, despite promising voters during his unsuccessful 1996 Senate race that he would not. The ads omit the fact that the raise is an automatic cost-of-living increase enacted in 1989, and that Rehberg voted in favor of a congressional pay freeze in 2010.
The Super PACs descend
Two weeks ago, the liberal Majority PAC took its first stab at swinging the Montana Senate race away from Rehberg. The group dropped $521,710.01 on an ad titled "Silver Plate," which claimed Rehberg would be "lost without his lobbyist friends." The ad pointed to a speech before the American League of Lobbyists last October in which Rehberg called lobbyists "honorable," and highlighted the fact that Rehberg "used to be one." The Tester campaign leveled similar accusations against the Republican challenger in late August, using the exact same information.
Majority PAC is a prime example of the groups that have formed in the wake of Citizens United. As a super PAC, Majority is free to accept and spend unlimited amounts of money expressly supporting or opposing a candidate for federal office. Majority is backed by a host of unions, lobbyists and other political action committees (yes, PACs donate to super PACs, super PACs donate to PACs, etc.) It has spent more than $13 million on independent expenditures supporting Democrats or opposing Republicans, has contributed an additional $14.6 million to various candidates and had $1.2 million on hand at the end of August. One of Majority's top donors is Working for Working Americans, a Las Vegas-based super PAC tied to trade unions.
Many of the super PACs in 2012 are run by political pros, Allison says, or people with connections to either the Democratic Party or the GOP. They know what type of influence works, and how best to achieve the goals that attract wealthy donors. "Some of the bigger super PACS are almost like shadow parties. But the donors, especially people who are writing checks for $10 million like the Sheldon Adelsons of the world and the Harold Simmonses, they're conferring with these folks and helping to push the strategy and the message."
Super PACs are technically forbidden from coordinating directly with a candidate's campaign. But these political pros are often in the same place at the same time, such as the Republican National Convention in Tampa, Fla., in August. Journalists, analysts and pundits alike speculate that coordination does in fact occur behind closed doors.
Majority PAC's end-game isn't hard to figure out: In a year when conservatives are gunning for a Republican majority in the Senate, liberal super PACs are fighting to hold the line. Tester's seat is one of the most contested in the country. A poll released last week from the Global Strategy Group shows Tester with a narrow 2-point lead against Rehberg. In Montana, Majority's efforts at least offset the work of conservative super PAC Freedomworks for America, which has spent thousands undercutting Tester's re-election bid.
Super PACs have been the focus of considerable debate in the wake of Citizens United. However, the groups are far more transparent than other players in the campaign game. Super PACs are required to disclose independent expenditures to the FEC, and must file monthly reports listing donors and donation amounts. As a result, they've attracted support from wealthy mega-donors like casino mogul Sheldon Adelson and conservative billionaire Harold Simmons, who don't appear to mind having their names associated with big money contributions.
According to a recent CBS News story, 26 individuals and companies have donated more than $1 million a piece to Republican presidential candidate Mitt Romney's Restore Our Future super PAC. Last week, left-wing philanthropist and mega-donor George Soros, who opposed the Citizens United decision and has spent years decrying super PACs, entered the cycle with an eleventh-hour $1 million donation to the pro-Obama Priorities USA Action. Soros also committed a combined $500,000 to the House Majority and Senate Majority PACs.
Super PACs are positioned to make an impact long after the Nov. 6 election. In exchange for unleashing relentless attack ads against candidates they oppose and clearing the field for candidates they favor, they expect a return on their investment.
"They can hire a lobbyist to go in and talk to members of Congress or their donors can, and go, 'We're the guys who dumped a million dollars on you in the waning days of your race, and you wouldn't be here without us. Here's what we want,'" Allison says. "You have these guys with these campaign finance bazookas, and all their donors have interests in Washington. That's what's so worrying."
In Montana, the super PAC craze hasn't been nearly as prominent as it has in other races across the country. Spending will pick up in the next month, and as super PACs drain the millions in their coffers, those who haven't bought into the state yet might be tempted to do so. But so far, the flurry of activity here stems from what Allison considers a more insidious pool of political influence.
The rise of the nonprofits
Perhaps the biggest player in Montana's Senate race so far is Crossroads Grassroots Policy Strategies, the 501(c)(4) co-founded by GOP strategists Karl Rove and Ed Gillespie. One of the group's ads claims Tester is the number one recipient of lobbyist donations in Congress. Another accuses the incumbent of voting to raise taxes on small businesses and families, and once again ties him to the passage of the Affordable Care Act. All three attacks are identical to ads and press releases paid for by Rehberg's campaign.
In the past month, Crossroads has disclosed $1.4 million in independent expenditures directly opposing Tester—the cost of production and air time for two ads saying "Vote no on Jon Tester for U.S. Senate." But ad totals beyond that are nearly impossible to calculate. For over a year, Crossroads has dodged the FEC's disclosure regulations by running "issue advocacy" ads, or ads that don't directly support or oppose a political candidate. Instead, Crossroads has encouraged voters to "Call Jon Tester" and "Tell him: no more reckless spending, no more new taxes, no more blank checks."
Crossroads flirted with the line of "issue advocacy" in a late August ad that was clearly meant to condemn a second Tester term. The ad featured images of a little girl eating an orange and claimed that the nation's debt has increased "$3.5 billion every single day since Jon Tester arrived in the U.S. Senate." Crossroads cited Tester's support for the stimulus bill, his support for the ACA and his votes "to raise the debt limit." The ad ended with the line "Tell Tester: cut the debt," and asked viewers to "Support the New Majority Agenda."
Rough estimates based on Crossroads press releases received by the Independent and on data gathered by the Sunlight Foundation put Crossroads' spending in Montana's Senate race at close to $4 million. The New York Times and Huffington Post reported in June that Sheldon Adelson has donated at least $10 million to Crossroads this year—a fraction of the $71 million in political contributions he's doled out to conservative groups.
These "social welfare" nonprofits have risen to prominence since 2008, trumping super PACs as the real heavy hitters in contemporary campaigns. According to a ProPublica report in August, Crossroads and the Koch brothers' Americans for Prosperity have spent nearly as much as every super PAC in the country combined. Adelson's own Republican Jewish Coalition has spent big too, though according to ProPublica, the group told the IRS at its founding in 1985 that it would not engage in politics. These groups have executed all this spending without having to disclose any of their donors, to either the FEC or the IRS. It's here, Allison believes, that corporations have truly taken advantage of Citizens United.
"After Citizens United, groups like the U.S. Chamber of Commerce have much wider latitude in terms of what they can do," Allison says. "If you're a corporation that's trying to avoid alienating half of your customers, it makes more sense to do things through a group that doesn't have to disclose you as a donor and can take the heat for the ad."
A study conducted in 2010 by the D.C.-based nonprofit Public Citizen revealed a startling development in political 501(c)(4) activity. In 2004, nearly 98 percent of independent groups dropping money on electioneering communication disclosed their donors. That figure dropped to 50 percent in 2008, and plummeted to 32 percent in 2010 following the Citizens United ruling. Craig Holman, a government affairs lobbyist for Public Citizen and one of the leaders of the study, says he expects the level of disclosure to fall even further by the end of the 2012 cycle.
"We saw a 427-percent increase in outside spending in the 2010 elections over the previous congressional election," Holman says. "And that was when corporations were sort of dipping their toes in the campaign waters, saying, 'Can we really do this? Can we really get away with it without any disclosure?' Now they know they can get away with it, and they know how to do it."
Crossroads is a perfect case study in the big donors' attraction to anonymity. Rove originally founded American Crossroads as a super PAC in the hopes of netting huge corporate contributions. The plan didn't pan out. Rove then established the branch 501(c)(4) Crossroads GPS and interest turned around.
"That's become the big money machine for Karl Rove," Holman says. "Crossroads is a very telling story here."
The desire to offer donors complete anonymity became more clear recently. This March, a district court judge ruled in Van Hollen v. FEC that disclosure laws pertaining to groups like Crossroads had been misinterpreted, and that nonprofits running "issue advocacy" ads had to disclose certain donors. Crossroads subsequently abandoned its mock-neutrality and began running ads directly opposing Tester in September. When an appeals court overturned the Van Hollen ruling on Sept. 18, Crossroads quickly transitioned back to its "issue advocacy" model.
"These groups have, as their priority, not to disclose their funding sources," Holman says. "As a result, most of this outside money spent in Montana, you really aren't going to know where it's coming from."
Even if these nonprofits do overstep campaign finance regulations, enforcement at the federal level is weak. The IRS is currently investigating Rove's Crossroads GPS and others under suspicion that they've violated their tax-exempt status by dedicating more money to political agendas than to social welfare. But any investigation will take time, and it's not like the candidates they back will be kicked out of office for a nonprofit's infraction. "If they get in trouble later, they'll deal with it when they get in trouble," Allison says. "But the election is over in November, and they're going to pull out all the stops to get their guy to win."
Crossroads admitted to its primary agenda earlier this summer: To regain a Republican majority in the Senate. It has specifically targeted the weakest Senate candidates in the country, particularly in North Dakota, Nebraska, Montana and Missouri. Following Missouri Republican candidate Todd Akin's comments in September about rape, conservative backers pulled their support for his bid, including Crossroads GPS. The group is now redistributing its financial weight to remaining at-risk races.
"I actually kind of feel sorry for you guys [in Montana], because your television waves will be saturated with negative attack ads for the next couple weeks," Holman says. "You're not going to be able to get away from it."
The U.S. Chamber of Commerce, also a 501(c)(4), has spent $702,000 attacking Tester, with zero donor transparency. The attacks have hit on the same notes as scores of others: support for Obamacare, tax hikes, siding with "the Washington way." But it's Crossroads that has trumpeted the mantra of the Rehberg campaign that Tester has voted with President Barack Obama "95 percent of the time." Taken from the Crossroads ads, however, the message is switched to "97 percent of the time." The continued attacks have added considerably to the negativity of the campaigns.
"It's almost like candidates have outsourced their negative ad operations to these groups, because it doesn't stick to the candidate," Allison says. "Afterwards, it's not Mitt Romney or Jon Tester saying 'I approve this message.' It's 'Paid for by Americans for Good Government and Apple Pie' and whatever else. The candidate doesn't get the negative perceptions for running negative ads."
The root of the message
UM's Jim Lopach believes much of this outside influence washes right over a bulk of Montana's electorate. He calls it "wasted money." Political advertising is far more likely to reassure voters who already have their minds made up than it is to create converts. "People tune it out," Lopach says.
Given the D.C. savvy of the strategists running the operations, Allison isn't so sure.
"Folks like Karl Rove and Bill Burton on the Democratic side, who's doing [Obama super PAC] Priorities USA, are not stupid," Allison says. "They don't do things that don't work. They run so many negative ads because they know it will frame elections for voters."
If outside spending has any influence on the voter at all, Allison adds, it's that the high level of negativity turns the voter off the process entirely. Ads in the 2008 presidential race were largely positive compared to 2012, and that election enjoyed a high voter turnout rate. "You might see turnout dropping in 2012," Allison says.
The real impact is felt by the candidate, watching as his or her message is corrupted by groups with secretive money and ulterior motives. Tester rolled out his first campaign ads as a series of reassurances that he's still the Montana farmer voters sent to D.C. in 2006. There has been the occasional attack on Rehberg, but Tester has largely stuck to his votes in favor of the auto-industry bailout and his work on bills benefitting the state's veterans.
Rehberg went on the offensive early in his campaign, promoting his campaign's central message that Tester is, effectively, Obama Lite. By early summer, however, he shifted into his own identity branding, releasing an ad featuring a Bozeman family's story about how Rehberg helped them overcome bureaucratic red-tape when adopting their daughter from Nepal.
The messages are fairly clear: Tester's a Montana farmer representing families and small businesses, and Rehberg's a Montana rancher promising to shrink the federal government's footprint in the state. But with so many outside ads dominating Montana's airwaves, it's become easy for the positive reinforcement behind those messages to get lost in the din. And it's grown equally as easy for the candidates' negative salvos to become amplified.
"You end up with these different voices with different perspectives that are very different from the candidates', and that can really get in the way of their messaging," Allison says. "Especially in congressional races, an outside group dumping a couple million dollars when you have House candidates raising a few million and Senators raising maybe $10 million or $20 million, that can have a huge impact."
That's primarily why Allison's Sunlight Foundation, along with nonprofits such as the Center for Responsive Politics, have taken steps to bring more transparency to the process. Over the past two years, Sunlight has rolled out a number of searchable web databases making campaign finance information more accessible for the general public. Sites like Influence Explorer boast "Google simplicity," as Allison puts it, and allow voters to search for specific donors and candidates. Political Partytime, a database of political event invitations, sheds light on how individual candidates go about raising campaign cash.
"Members of Congress don't have to really tell us how they raise all that money," Allison says. "I mean, they have to disclose their donors, but they don't say how they raise it. So we've forced this transparency on them using old-fashioned journalism, talking to sources and asking them for invites."
These efforts won't solve the underlying problem of unchecked outside influence on political campaigns. Neither will the DISCLOSE Act, a bill languishing in Congress this year that would require stricter disclosure of political spending and contributions. Legally, there are only two possibilities for reining in the unprecedented amounts of cash flowing through the current elections process. The Supreme Court could reverse its decision in Citizens United, an outcome that's unlikely given the court's strike-down this year of Montana's Corrupt Practices Act. Or Congress could pass a constitutional amendment limiting the campaign activity of corporations.
"Amending the constitution is a very difficult process," Lopach says. "It's only been done 27 times, and only four of those 27 amendments overrode Supreme Court decision in our history. When people put on the ballot a measure that urges the Montana Legislature to urge Congress to propose an amendment, it's just futile. That's not going to happen."
In other words, get used to seeing elections through the current fractured view. Campaigns may try to rise above outside influence to reach potential voters, but if 2012 is any indication, the electorate would have a clearer perspective of the candidates after a couple gallons of rum.