The New York Times' Disingenuous Campaign Against Citizens United

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The paper is promoting the misconception that the ruling allowed for unlimited campaign contributions from super-rich individuals. It didn't.

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Like Fox News, The New York Times has a First Amendment right to spread misinformation about important public issues, and it is exercising that right in its campaign against the Citizens United ruling. In news stories, as well as columns, it has repeatedly mischaracterized Citizens United, explicitly or implicitly blaming it for allowing unlimited "super PAC" contributions from mega-rich individuals. In fact, Citizens United enabled corporations and unions to use general treasury funds for independent political expenditures; it did not expand or address the longstanding, individual rights of the rich to support independent groups. And, as recent reports have made clear, individual donors, not corporations, are the primary funders of super PACs.

When the press promotes false understandings of Citizens United, it paves the way for false solutions

When I first focused on the inaccurate reference to Citizens United in a front-page story about Sheldon Adelson, I assumed it was a more or less honest if negligent mistake. (And I still don't blame columnists for misconceptions about a complicated case that are gleaned from news stories and apparently shared by their editors.) But mistakes about Citizens United are beginning to look more like propaganda, because even after being alerted to its misstatements, the Times has continued to repeat them. First Amendment lawyer Floyd Abrams wrote to the editors pointing out mischaracterizations of Citizens United in two news stories, but instead of publishing corrections, the Times published Abrams' letter on the editorial page, effectively framing a factual error as a difference of opinion. Since then the error has reappeared: A February 21 post by Editorial Page Editor Andrew Rosenthal attributes Sheldon Adelson's ability to influence the election to Citizens United. "Thanks to Citizens United, unlimited contributions to third-party groups are legal," Rosenthal asserts.

It's only fair to note that the Times has recently made small, slippery concessions to the truth: References to Citizen's United now are more likely to be misleading or, at best, greatly oversimplified, rather than indisputably, explicitly wrong. A January 23 report on a $5 million contribution by Miriam Adelson to the Gingrich PAC stated, for example, that Citizen's United "paved the way for Super PACs," implying that it legalized Adelson's individual contribution. It did not.

What paved the way for super PACs? First came Buckley v. Valeo, the 1976 case that struck down limits on independent expenditures while sharply limiting direct contributions to candidates, thus ensuring the formation of well-funded independent groups. More recently, in Speech Now v. FEC, a case decided in the aftermath of Citizens United, a federal appeals court ruled that an independent group devoted to promoting free-speech rights (Speech Now) could not be considered a political action committee and subject to limits on donations. ("Super PAC" is a misnomer for groups that derive power from the fact that they are not legally classified as PACs.) The Court in Speech Now did rely on Citizens United, citing it for the proposition that the government has no "anti-corruption interest" sufficient to justify limiting independent expenditures. But it could also have reached back decades to Buckley and a tradition of protected, independent political advocacy and deservedly unsuccessful efforts to restrict it. For example, in the 1980s, the FEC threatened to classify the ACLU as a political action-committee because it criticized President Reagan's civil-liberties record during an election year.

As these examples suggest, campaign-finance reforms dating back decades have produced an overcomplicated, overreaching web of laws and regulations that are easily abused, misunderstood, or intentionally obfuscated. The complexities of campaign finance law (and tax-code provisions governing independent groups) also create incentives to oversimplify the problems caused of the campaign-finance regime by naming Citizens United as the root of all evils. This helps advance what appears to be a simple solution -- repeal Citizens United with a "free speech for people" constitutional amendment declaring that corporations aren't people. Putting aside the dangers of this approach, it wouldn't solve the problem of super PACs: the billionaires funding them may lack personal appeal but they are, after all, people, whose expenditures were not at issue in Citizens United. When the press promotes false understandings of Citizens United and the problems of campaign finance, it "paves the way" for false solutions.

It's worth noting that the Times is not alone among proponents of reform in scapegoating Citizens United (although it seems to have taken the lead.) "The New York Times, The Washington Post, and MSNBC regularly and routinely misstate the meaning and impact of the Supreme Court's Citizens United decision on campaign finance rules," Steve Brill recently observed, citing a post by Dan Abrams. Brill recommends confronting reporters and commentators with their frequent misstatements. Former ACLU Executive Director Ira Glasser has gamely tried engaging New York Times Public Editor Arthur Brisbane in an effort to stop misleading readers.

Meanwhile, the Times editorial page continues its disingenuous assault on Citizens United. Even when acknowledging that the decision did not unleash individual donations, it makes highly misleading statements about it. A February 22 editorial called on the Supreme Court to reconsider Citizens United (in a review of the Montana campaign finance law defiantly upheld by a state court.) The editorial cited the "damaging effects of unlimited spending by corporations and unions on elections," notwithstanding anews story the same day confirming that individual tycoons are primary funders of super PACs. (Blame extreme concentrations of wealth, not Citizens United, for the rise of the Super PAC's.) And, with no hint of self-awareness, the editorial lambastes the Court for ignoring the facts, while wrongly accusing it of reversing a "century of federal law."

"Don't Do What We Do ...," the headline should have read. The Times doesn't rely on facts; instead, it stubbornly promotes factoids about Citizens United, including the canard that it reversed "a century of federal law." Over a year ago, in November 2010, (as I reported here) Ira Glasser alerted then-Public Editor Clark Hoyt to the fact that the century-old ban on direct corporate contributions to candidates still stands, untouched by Citizens United, but Rosenthal, the editorial page editor, dismissed that pesky fact as irrelevant. Then, it became briefly relevant a year later, when a January 2012 Times editorial exhorted Congress not to repeal a century of federal law, stating that Citizens United "said nothing about the basic 1907 reform law ... that bans corporate donors from wooing candidates directly with largess." But, once acknowledged, this fact slipped back into irrelevance only one month later in the February 21 editorial in which the Times blithely contradicted itself and stated, once again, that Citizens United struck down that century old law. Are you confused yet? What does the Times believe or want you to believe about Citizens United? Whatever.

Image: Reuters


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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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