I Was Wrong on Citizens United

When the Citizens United decision came down, I argued that its impact was being overblown because the central holding of the case, that corporations could spend money to directly influence an election, would not be used because companies wouldn’t want their name on the ads. Since they could already spend that money by laundering it through a third party group, I didn’t think much would change. It looks like I was wrong.

Rick Hasen, who is probably the most prominent legal expert on election law in the country, wrote an article recently in Slate pointing out why I and many others were wrong:

The argument goes like this: The Supreme Court back in 1976 held that individuals had a constitutional right to spend unlimited sums on elections. And before Citizens United, rich individuals like George Soros gave large sums of money to so-called “527 organizations” (named after an obscure section of the tax code) with innocuous names like “Americans Coming Together.” These 527 organizations were just like super PACs, so there’s nothing new here.

This line of attack is so strong and insistent that the New York Times public editor, Arthur Brisbane, felt it necessary to weigh in on whether the paper’s stories tying Citizens United to super PACs were fair. (He concluded they were, but that the truth was complicated.) The purpose of the drumbeat appears to be to insulate the Supreme Court from further criticism of the Frankenstein’s monster they’ve created.

It is true that before Citizens United people could spend unlimited sums on independent advertising directly supporting or opposing candidates. But that money had to be spent by the individual directly. It could not be given to a political action committee, which had an individual contribution cap of $5,000 and could not take corporate or union funding. In many cases, wealthy individuals did not want to spend their own money on advertising, which would say “Paid for by Sheldon Adelson” or “Paid for by George Soros,” so fewer of these ads were made. The only way to avoid having your name plastered across every ad was to give to the 527s, which claimed they could take unlimited money from individuals (including, sometimes, corporate and labor union money) on grounds that they were not PACs under the FEC’s definition of PACs. These organizations were somewhat successful, but a legal cloud always hung over them. During the 2008 Democratic primary season, Bob Bauer, candidate Obama’s lawyer, barged in on a pro-Hillary Clinton conference call to say that people giving to 527s to support Clinton could face criminal liability.

After Citizens United, the courts (most importantly in Speechnow.org v. FEC) and the FEC provided a green light for super PACs to collect unlimited sums from individuals, labor unions, and corporations for unlimited independent spending. The theory was that, per Citizens United, if independent spending cannot corrupt, then contributions to fund independent spending cannot corrupt either. (I am quite critical of this theory about corruption, but that’s besides the point here.) So what was once of questionable legality before the court’s decision was fully blessed after Citizens United.

So it isn’t really the Citizens United decision itself, which is what I was writing about at the time, but the subsequent court rulings (like SpeechNow) and FEC rulings based upon that ruling that are the real problem. And he notes the staggering numbers on third party spending to influence elections:

Let’s focus only on presidential election years, to keep the comparisons as simple as possible. In the 1992 election season, when it was entirely possible (under that 1976 Supreme Court decision) for Sheldon Adelson or George Soros to spend unlimited sums independently on elections, total outside spending up to March 8 was about $1.5 million. In 2000, total outside spending up to March 8 was $2.6 million. In 2004 and 2008, with the explosion of 527 organizations, total spending to March 8 was $14 million and $37.5 million. What is the total for this election season through March 8? More than $88 million, 234 percent of 2008’s numbers and 628 percent of 2004’s.* If this was not caused by Citizens United, we have a mighty big coincidence on our hands.

Mark Schmitt of the American Prospect took exactly the same position I did on Citizens United when it came out, but he recognized his error during the 2010 election. I should have recognized it then as well.

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  • So, how do we go about reversing the situation?

  • ricko

    tacitus, why do you ask Ed? He was WRONG.

    He even KNOWS it.

    He was wrong then, he’ll be wrong in the future. It’s a blind-eye situation.

    He was incorrect.

  • blindrobin

    Hate to say “I told you so”. Oh, I didn’t, but I did figure that you would see the ever so glaringly bright light at the entrance to the tunnel eventually.

  • akkonor

    I’m sure the Cato Institue will know what to do.

  • baal

    I want a rule for federal and State elections that all funds for the election must arise from the jurisdiction for which it’s being held. It’ll never happen and still has some serious bias issues. This rule would also need disclosure so we can tell that there isn’t outside $$ being spent.

  • daved

    It’s really getting insane right now. I was waiting for a car repair this morning, and the waiting room had CNN on the TV. I saw at least two Obama ads in under an hour. But that’s a national audience.

    While driving to work afterwards, however, I heard a 3rd party ad for Romney on the radio (one that was really lying its ass off, about how Obama had run up more debt than all previous presidents combined). And this is in Massachusetts, a state that Romney has no chance of winning! I suppose they might be trying to reach New Hampshire voters, since that state is still in play, but even so…

    I can only imagine what the advertising blitz must be like in a battleground state like Ohio right now. I’m glad I’m not there.

    On a more humorous note, I saw a political cartoon this morning that depicted Romney falling down the stairs of a jetliner onto the tarmac, as a symbol of how well his overseas trip is going so far. It reminded me of a Don Wright cartoon from 1968, depicting George Romney standing at the receptionist’s desk in a doctor’s office. George’s leg is bent upwards and his foot is entirely in his mouth; the receptionist is saying “A Mr. Romney to see you” over the intercom.

  • The Lorax

    Would be nice if there was a flat amount that each party could spend, and not a dime more. Put ’em on an even playing field; the only difference being how cleverly they spend the money.

    If anything, putting restrictions on how much they can spend might make them re-think how they spend it.

  • daved

    Paul Begala, writing in Newsweek a week or so ago, did the math and computed that the parties will be spending something like $2100 per undecided voter in the swing states. He wondered if those voters would just like the money instead. Plus (my observation), it would spare all the other voters from having to watch (or hear) all those damn ads.

  • Ed, I follow your blog for several reasons. One, I mostly agree with you politically and ‘theologically’. Two, you find interesting stuff to report.

    But the main reason I check your blog is because you actually try to catch errors and correct them, and you acknowledge when you’ve made a mistake. A whole lotta people on all sides of so many issues don’t ever do that.

  • Moon Jaguar


    As an Ohioan, let me tell you: the ad wars are absolutely brutal. Just thinking about it made me throw up in my mouth a little. The worst ads insinuate that Obama owns the entire $15 trillion deficit. Lyin’ bastards.

  • lofgren

    You’re forgiven.

    This time.

  • Moon Jaguar “The worst ads insinuate that Obama owns the entire $15 trillion deficit.”

    It’s true! I heard it on the radio.

  • uzza

    Where does all that money go? I would really like to know. Is it all spent on TV/radio ads? I don’t watch TV and I’ve never seen any of them.

  • Ben P

    The tough part about starting to fix this is getting precisely the right statute passed and then getting a really good test case.

    I’ve argued before that I have some real difficulties with straight out arguments that people should not be able to make political communications with their own money. I see a rationale for limiting them, but the whole thing is sticky.

    On the other hand I have absolutely no qualms about rules that very explicitly require political advertisements to bear the identity of who is paying to air them, and find the fact that I can, more or less, pay a couple hundred bucks to set up two corporations, with the only publically disclosed contact to be an attorney who won’t share information, donate a large sum of money to one corporation, then have it donate that same large sum to the second corporation who will use it to buy campaign ads virtually anonymously, to be pretty scary.

    to set up a corporation, make the sole public individual associated with that corporation be an attorney who won’t reveal the

  • Romney is fundraising in foreign countries! Isn’t it illegal to use foreign money in our politics? Or has Citizens United turned the whole thing up for grabs?

  • Michael Heath

    Re reverendrodney’s point:

    Can you imagine the uproar from conservatives if Barack Obama solicited campaign funds in foreign country?

  • Abby Normal

    I wonder how much of that 628 percent growth is a reflection of under the table deals becoming visible. Are companies really spending that much more on influencing government or are they just able to do it more directly now? I mean 88 million doesn’t sound like that much to me in comparison to your average corporate budget.

    Ben P, I refer you to the ever insightful Ambrose Bierce, “Corporation, noun: An ingenious device for obtaining individual profit without individual responsibility.”

  • Forbidden Snowflake

    Romney is fundraising in foreign countries! Isn’t it illegal to use foreign money in our politics?

    It is, but he’s appealing to US citizens living in foreign countries.

  • Michael Heath @8:26 PM: Can you imagine the uproar from conservatives if Barack Obama solicited campaign funds in foreign country?

    What? You mean like the brief attempt to make a scandal out of, “OMG! Obama’s spending the Fourth of July in France!”

  • Forbidden Snowflake “It is, but he’s appealing to US citizens living in foreign countries.”

    Well, he’s certainly not appealing to US citizens in the USA!*

    * Hey-oh!