The Effectiveness of Unintentional Disclosure

As reported by the New York Times earlier this week (and discussed extensively by Ed), Joe Ricketts, the conservative businessman who founded TD Ameritrade, put together an advertising strategy with the help of famed conservative adman Fred Davis to bring back the Jeremiah Wright issue right around the time of the Democratic convention.

The way the strategists behind the proposal framed their overall approach was to “do exactly what John McCain would not let us do.” As we all know, once the Times got their hands on the proposal and published their story, the strategists who drew up the plan and the Romney campaign furiously backed away from the proposal and it now seems unlikely that the Wright issue will come to fruition in any substantial way.

This episode, where a potentially controversial Super PAC ad campaign was undone by journalists getting their hands on the planning documents and identifying the funders and strategists themselves, is just another example of how important Citizens United is to the explosion of Super PACs in the 2012 race.

As the election lawyer Rick Hasen has argued, Joe Ricketts or any other conservative billionaire would have been able, before Citizens United, to independently fund election ads, but the ads would have to specify that “this message was paid for by Joe Ricketts.”

Now, with the advent of unlimited donations to Super PACs, Ricketts would not face the same personal disclosure requirements that governed independent expenditures in the pre-Citizens United era.

Of course, many major Super PAC donors are perfectly happy to be tied to their favorite candidate or party — Sheldon Adelson was hardly shy about his support of Newt Gingrich — but Ricketts had neither the desire nor stubbornness to be publicly known as the primary funder of a controversial political advertising campaign. This small episode suggests, along with a boatload of independent expenditure funding, that the Super PAC/individual donation distinction is operationally quite meaningful and that more systematic, holistic disclosure rules could tamp down on the most blatant excesses that mark the brave new world of campaign finance.