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.

(Continued from Page 1)

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?

Advertisement

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.

TODAY IN SLATE

Politics

The Democrats’ War at Home

How can the president’s party defend itself from the president’s foreign policy blunders?

Congress’ Public Shaming of the Secret Service Was Political Grandstanding at Its Best

Michigan’s Tradition of Football “Toughness” Needs to Go—Starting With Coach Hoke

A Plentiful, Renewable Resource That America Keeps Overlooking

Animal manure.

Windows 8 Was So Bad That Microsoft Will Skip Straight to Windows 10

Politics

Cringing. Ducking. Mumbling.

How GOP candidates react whenever someone brings up reproductive rights or gay marriage.

Building a Better Workplace

You Deserve a Pre-cation

The smartest job perk you’ve never heard of.

Hasbro Is Cracking Down on Scrabble Players Who Turn Its Official Word List Into Popular Apps

The Ludicrous Claims You’ll Hear at This Company’s “Egg Freezing Parties”

  News & Politics
Politics
Sept. 30 2014 9:33 PM Political Theater With a Purpose Darrell Issa’s public shaming of the head of the Secret Service was congressional grandstanding at its best.
  Business
Moneybox
Oct. 1 2014 8:34 AM Going Private To undertake a massively ambitious energy project, you don’t need the government anymore.
  Life
The Vault
Oct. 1 2014 10:49 AM James Meredith, Determined to Enroll at Ole Miss, Declares His Purpose in a 1961 Letter
  Double X
The XX Factor
Sept. 30 2014 12:34 PM Parents, Get Your Teenage Daughters the IUD
  Slate Plus
Behind the Scenes
Oct. 1 2014 10:54 AM “I Need a Pair of Pants That Won’t Bore Me to Death” Troy Patterson talks about looking sharp, flat-top fades, and being Slate’s Gentleman Scholar.
  Arts
Brow Beat
Oct. 1 2014 10:44 AM Everyone’s Favorite Bob’s Burgers Character Gets a Remix You Can Dance to
  Technology
Future Tense
Oct. 1 2014 10:27 AM 3,000 French Scientists Are Marching to Demand More Research Funding
  Health & Science
Bad Astronomy
Oct. 1 2014 7:30 AM Say Hello to Our Quasi-Moon, 2014 OL339
  Sports
Sports Nut
Sept. 30 2014 5:54 PM Goodbye, Tough Guy It’s time for Michigan to fire its toughness-obsessed coach, Brady Hoke.