Opinion

opinion | Wendy Kaminer

Citizens United shouldn’t get all the blame

Yvetta Fedorova for the Boston Globe

Imagine this: Next year, the Supreme Court accepts a campaign finance case for review and reverses its 2010 decision in Citizens United, which struck down a ban on independent electoral spending by corporations and unions.

Many Americans would cheer, in the mistaken belief that the reversal would limit — if not end — the influence of super PACs. They’d be sorely disappointed.

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Super PACs are not dependent on corporate funding. They’re primarily funded by super-rich individuals, whose right to devote unlimited amounts of their own money on independent expenditures (those not involving direct contributions to candidates) was confirmed by the Court in 1976, in Buckley v. Valeo. As the Brennan Center, a fierce critic of the Citizens United ruling, has acknowledged, “the singular focus on the decision’s empowerment of for-profit corporations to spend in (and perhaps dominate) our elections may be misplaced.”

I’m not suggesting that the great majority of Americans who agree that money has “too much influence” in elections should be relieved that a handful of multibillionaires instead of for-profit corporations exercise that influence. But I am saying the Citizens United decision is not the source of all campaign finance evils.

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It did not unleash spending by wealthy individuals. Even before a federal court decision following Citizens United facilitated the growth of super PACs, ultra-rich individuals were pouring money into elections through other vehicles. Some, like Rupert Murdoch, spoke through their media corporations. Others had their say by spending lavishly on elections: The leading liberal Democratic donors spent over $100 million in 2004.

Citizens United did not uphold dark money groups. Instead, it upheld disclosure requirements. Dark money reflects an IRS failure to enforce laws restricting partisan electoral activity by nominal public charities. Citizens United did not approve coordination between super PACs — independent expenditure groups — and the candidates they support. Instead, it approvingly (however naively) cited bans on coordination. Those bans are ineffective, partly because partisan divisions paralyze the Federal Elections Commission.

Citizens United did provide campaign finance reformers with a rallying cry — for better or worse, depending on your point of view. While reducing this complex ruling to a political symbol helps aspiring reformers raise funds and aspiring Democratic presidents organize support, it harms public understanding of electoral speech and spending, and the complicated legal regime that governs them.

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Gazillionaires disproportionately affect elections precisely because money is speech, as NPR pledge drives make clear. The surge in their campaign spending reflects their extraordinary concentrations of wealth, which preceded Citizen United. And gazillionaires aren’t the only people who speak through their expenditures. So do ordinary citizens, the “everyday people” Hillary Clinton aims to please.

In fact, ordinary citizens depend on corporate electoral speech that rich super PAC contributors can afford to ignore. Ordinary citizens can’t play with super PACs; nor can they make maximum allowable direct contributions to federal candidates ($2,700 per election). But they can pay membership dues and make modest donations to liberal and conservative advocacy groups that speak on their behalf, virtually all of which are incorporated.

McCain-Feingold, the 2002 campaign finance law at issue in the Citizens United case, criminalized the nonprofit corporate electoral speech on which everyday people depend. Citizens United, a nonprofit corporation, challenged a provision of McCain-Feingold that would have subjected it to criminal sanctions for broadcasting a movie critical of Hillary Clinton 30 days before a primary (when voters are paying attention). Would progressives have decried the Citizens United ruling if it upheld a criminal ban on a liberal nonprofit’s broadcast of a movie lambasting George Bush? I don’t think so.

Is excessive electoral spending by super-rich individuals distasteful? Of course. Does it corrode faith in our electoral system? Apparently. Should we require disclosure of major campaign contributions? Absolutely. Will banning corporate and union campaign spending diminish the influence of plutocrats on politics? Not likely. The super-rich can speak for themselves. Will limits on independent expenditures diminish their influence? Doubtful. The super-rich can always buy or establish media companies, and any law or constitutional amendment banning corporate speech will include an exception for freedom of the press. The New York Times and Fox News, among other media giants, wouldn’t have it any other way.

Wendy Kaminer is a lawyer and free-speech advocate.

Related:

Lee Drutman: A need for campaign finance reform

Marty Meehan’s guide to campaign finance reform

2013 | Farah Stockman: Two rulings that benefited a powerful few

2012 | Jim McGovern and Jeff Clements: ‘We the People’ can overturn Citizens United

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