On November 22, 2010, the New York Times published an editorial lamenting the Citizen's United decision and repeating a popular myth about the case, claiming that the majority in Citizens United "overturned a century of precedent." No, it didn't. (Never mind that overturning old precedents is not necessarily a bad thing, as Brown v. Board of Education demonstrated.) The 1907 law, or "precedent," on which the Times relied (the Tillman Act) banned direct corporate contributions to federal campaigns -- the Tillman Act was not at issue in Citizen's United, and it has not been overturned. Citizens United struck down a ban on independent expenditures enabling advocacy for or against candidates by non-profit or for profit corporations or unions in the run-up to an election. In effect, it held that media corporations, like the Times or Fox News, do not have constitutional monopolies on political endorsements or attacks.
The Times had reason to know better when it published its inaccurate editorial last November. Months earlier, in February, 2010, it had wrongly editorialized that Citizens United sanctioned "unlimited corporate and union contributions," (again, ignoring the important difference between direct contributions to campaigns and independent expenditures), and it published letters complaining, predictably, that the decision overturned a century of precedent. So, naively perhaps, former ACLU Executive Director Ira Glasser requested a correction, pointing out that the 1907 Tillman Act had not been overturned. He emailed the Times corrections department and then public editor Clark Hoyt. His requests were ignored, and the inaccuracies were not merely uncorrected but repeated in the subsequent, November 22rd Times editorial wrongly claiming, once again, that Citizen's United overturned a century of precedent.
Glasser persevered, enlisting a constitutional law professor. In December, 2010, they sent a joint request for corrections to public editor Arthur Brisbane, including a detailed account of previous requests. Finally, Brisbane and editorial page editor Andrew Rosenthal responded. Brisbane rationalized, "we are operating in a bit of a grey zone here." Rosenthal declined to issue a correction, treating as a mere technicality the fact that (contrary to editorial claims), Citizens United had not actually overturned a century old precedent banning corporate contributions to campaigns.
Rosenthal explained: "It is our view that in this century, there is no longer a whit of difference between allowing a corporation to contribute with no limits and no transparency to politics, and allowing them to contribute to individual candidates."
That is a remarkable statement, reflecting either a shallow understanding of political campaigns and political speech or simply a cynical effort to devise an excuse for not correcting a mistake. (It also wrongly implies that Citizen's United ruled against disclosure requirements.) As Glasser explained in his next response to the Times:
If Mr. Rosenthal and the Times actually believe that (there is no difference between contributions and independent expenditures), then they must believe that there is no difference between the Times, as a corporation, contributing money to Andrew Cuomo's campaign for governor and the Times, as a corporation, endorsing his candidacy. Or that there is no difference between the ACLU contributing money to Mr. Kerry during his presidential campaign and speaking critically of his opponent for engaging in torture or warrantless wiretapping.
It is unobjectionable (except on the merits) for the Times to make the argument that expenditures on speech that mention a candidate are indistinguishable from money contributed to a candidate, and to criticize the Citizens United decision on that ground. But that is not what the Times did ... Instead, it misstated a fact in a way that was designed to obscure, or had the effect of obscuring, that argument ... it is inaccurate and intellectually dishonest to say, as the Times did, that the Citizens United decision 'overturned a century of precedent that it had twice recently affirmed.' That statement is not a gray area; it is flatly untrue.
It is probably needless to say that neither Rosenthal nor Brisbane responded to Glasser's last critique. How could they, and from their perspective, I guess, why should they? As you probably recognize if you've managed to read this far, you can get away with misrepresenting the facts about campaign finance partly because they're quite complicated -- legally, politically, and historically. It takes knowledge and patience to discern and appreciate the significance of inaccurate claims about what McCain Feingold and earlier laws prohibited and what the Citizen United decision allowed. Liberal critics of the decision, for example, often decry the rights it conferred on unpopular corporate behemoths, without ever acknowledging that it conferred the same rights on advocacy groups that liberals support -- rights that McCain Feingold had denied. The political speech of ordinary citizens who join incorporated, not for profit groups to make their voices heard are at stake in the campaign finance debate too. The facts are complex and confusing indeed, but when the facts are honestly presented, the issues become clear.