The Fat Cat Super PACs Lost, But Citizens United Is Still Bad

Eric Posner weighs in.
Nov. 9 2012 11:55 AM

Citizens United Is Still Worth Hating

Even though the fat-cat super PACs lost at the polls.

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When people register the intensity of their preferences by volunteering or donating money, maybe, as some conservatives claim, they overcome other forms of bias built into our system—such as the advantages of incumbency, the power of connected elites, or liberal bias in the media.

To be sure, fat cats have more money than the rest of us and thus can exert greater influence on elections than ordinary people can. The question is whether this negative outweighs the positive, and it is simply not clear. Indeed, a major problem with elections is that people have weak incentives to contribute money, or even to vote, because they know that their vote or contribution will have little effect on the outcome. Thus, donations or expenditures should be encouraged, not discouraged. The law recognizes as much. And yet its ambiguous command has been “donate, but not too much.” Maybe that has created an impression of arbitrariness, and that’s what judges (and not just conservative judges) have worried about.

The same sort of arbitrariness, however, can be found in those judges’ rulings, and none more so than in Justice Anthony Kennedy’s opinion in Citizens United, which relies heavily on Buckley’s distinction between contributions and expenditures. The court permitted limits on contributions because it believed that pouring money into a campaign may lead to corruption or the appearance of it, whereas “independent” expenditures cannot. But this independence has proved to be a mirage. As long as candidates know about expenditures made on their behalf, they can reward contributors with political favors. On what basis could the court think otherwise?

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The answer is none. And that is the problem with Citizens United and the whole line of cases on campaign finance law. Over the last few decades a link has been made between free speech and political markets, and the idea is that an unregulated political market, like an unregulated economic market, leads to the best outcomes. But while economists have shown that (in theory) an unregulated economic market maximizes social well-being under certain (ideal) conditions, no similar theory for political markets has any support.

Our electoral system is shot through with regulation—regarding how districts are drawn, candidates are selected, ballots are designed, and elections are conducted. Votes, unlike property rights, cannot be bought and sold. All of these rules reflect trade-offs that reduce the political influence of some people and magnify the political influence of others based on a rough idea of what is fair or good for the country. Whether additional regulations are needed to restrict spending is a hard question. In most democracies, the government would experiment with different systems, and then the public could make a judgment as to which works best.

The court has halted such experiments, maybe because it does not trust incumbents to choose fair rules. But the justices can properly take such a stance only if they themselves can distinguish unfair rules from rules that sensibly respond to defects. They can’t. And in the course of blundering along anyway, the court has disenfranchised voters who seek candidates to reform the system. The real harm in Citizens United is its suggestion that when we spot problems in our electoral system, we are helpless to fix them.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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