Citizens United Is Still Worth Hating
Even though the fat-cat super PACs lost at the polls.
Photo by Philippe Lopez/AFP/Getty Images.
Among the election’s many losers were rich people who spent millions of dollars on donations to super PACs that supported losing Republican candidates. David Weigel says that the rich people wasted their money. Kevin Drum concludes that Citizens United, the much-maligned 2010 Supreme Court case that struck down limits on corporate campaign spending, didn’t kill democracy after all. The truth is more complicated. Real harm likely occurred; it is just invisible. The underlying problem is that the court, under the guise of protecting free speech, interfered with efforts to regulate the political system, a serious harm in itself.
The story begins with the 1976 case Buckley v. Valeo. While upholding limits on campaign contributions and certain reporting and financing rules, the court in Buckley held that dollar limitations on expenditures by candidates and independent groups violated the First Amendment’s protection of free speech. Campaign donations and expenditures, the court said, were a form of expression—in essence, money equals speech. And while the government’s legitimate interest in preventing corruption could justify limits on the donations (because of the potential quid pro quo), the same was not true for expenditures, as long as they were made “independently” from the candidate. It was this case, not Citizens United, that ensured that rich people could baste their favored candidates with unlimited cash, albeit through “independent” expenditures, like television ads produced without direct coordination with the candidate.
In Citizens United, the court took an additional step and struck down a law that prohibited corporations from financing advertisements that supported a candidate shortly before an election. The court said the law, part of the McCain-Feingold campaign finance reform, violated the free speech rights of corporations. A lower court (the D.C. Circuit) then extended this ruling to the organizations we call super PACs, which accept donations, bundle them, and spend them independently of campaigns.
Citizens United became a lightning rod, with liberals arguing that the majority opinion, written by the five conservative justices, would magnify the influence of the wealthy on electoral outcomes. Conservatives retorted that the decision properly struck down a law that infringed on people’s right to speak using the organizational advantages of the corporate form.
The super PACs spent much of the total $1 billion in outside expenditures raised in the 2012 campaign—a vast increase relative to 2008. And yet Democrats prevailed in many major races, retaining the presidency and a majority in the Senate. Does that mean that Citizens United doesn’t actually matter?
No. Some Democrats did lose, and super PAC money may have made a difference. More insidiously, if Republicans have wealthier backers than Democrats (as they do), and spending for candidates improves their chances of winning (as it does), then the influx of money will shift Democrats to the right, so they can reduce the incentive of wealthy donors to give to Republicans or get some of the money for themselves. If you think President Obama went easy on the banks in the last couple of years, you might point to Citizens United as the explanation.
But the case for the campaign finance reform struck down in Buckley and Citizens United is not as strong as it first appears. Elections have many virtues, but voting systems lack a method for registering the intensity of a voter’s preferences. The vote of a person who slightly prefers Romney to Obama counts just as much as the vote of a person who greatly prefers Obama to Romney, even though we may think that a candidate should be chosen who does the most aggregate good for all voters. If an Obama presidency would greatly benefit 49 percent of the population, while producing a negligible harm for 51 percent, while a Romney presidency would provide a tiny benefit for 51 percent of the population, while greatly harming 49 percent, a case can be made that Obama would be the better president. But unless the 49 percent can use money or campaign work to persuade some marginal voters, they will lose.
Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Reach him on Twitter at @EricAPosner.