The Truth About Citizens United and Outside Campaign Cash

The misconception that the Supreme Court case enabled independent campaign supporters to indulge in political expenditures is pervasive and probably un-correctable.

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Protesters shout during a demonstration in front of the U.S. Supreme Court building, on the anniversary of the Citizens United decision, in Washington. (Reuters)

Facts matter, Montana Attorney General Steven Bullock argues to the Supreme Court in ATM v. Bullock, defending a state court decision upholding Montana's ban on independent corporate expenditures, which defies Citizens United. The plaintiffs/petitioners in ATM argue that Montana's high court acted in "blatant disregard" of its duty to follow Supreme Court rulings on constitutional rights, Bullock notes. But "that can only be true if facts are irrelevant." The fact is that Montana's law is effectively consistent with Citizens United, he argues: As a practical, factual matter, it operates to impose disclosure requirements that Citizen United upheld; and unlike the abstruse, federal regulatory scheme at issue in Citizens United, Montana law is "minimally burdensome" and enforced through civil rather than criminal sanctions.

It seems unlikely that the Supreme Court will be persuaded by this effort to distinguish Montana's ban on corporate speech from the federal ban struck down only two years ago. (Justices Ginsburg and Breyer, who dissented in Citizens United, joined in issuing a stay of the Montana court ruling, noting that state courts are bound by Supreme Court decisions.) The Court's Citizens United majority seems equally unlikely to reconsider, narrow its ruling, and limit the First Amendment rights of corporations to engage in political speech, although Breyer and Ginsburg have urged them to do so, citing the "huge sums currently deployed to buy candidates' allegiance."

Facts matter, supporters of Citizen United reply to its critics, and the fact is that corporations are responsible for only a small percentage of the "huge sums" deployed in the 2012 election. Individuals have contributed most of the funds. In fact, Senate Majority Leader Mitch McConnell points out (in an amicus brief authored by Floyd Abrams) the "corporate tsunami" predicted (and alleged) by Citizen United opponents "simply did not occur."

"There are now facts that bear on the concerns expressed by (Citizens United) critics," the McConnell brief stresses:

A review of FEC records for independent expenditure-only committees -- i.e. the so-called Super PACs -- supporting the eight leading Republican Presidential candidates has evidenced minimal corporate involvement in the 2012 election cycle ... not a single one of the Fortune 100 companies has contributed a cent to any of these eight Super PACs ... of the entire $96,410,614, (contributed to the Super-PACs,) 86.32% was contributed by individuals, 12.87% by privately held corporations and less than one percent -- 0.81% -- by public companies.

These are the facts often trivialized or ignored by opponents of Citizens United, many of whom should and probably do know better. Consider the amicus brief submitted by Free Speech for People (et al.). It stresses recent, overall increases in independent expenditures and generally conflates corporate and individual spending, referencing "super-PACs funded by the corporate and wealthy elite" and citing large expenditures by individuals, like Sheldon Adelson, to buttress arguments against Citizens United.

Why? If Citizens United were reversed tomorrow, Sheldon Adelson would retain the right to spend his money on electoral speech. The amount of money contributed by relatively few individuals so far, and expected to be contributed before November, may be unprecedented (and takes several non-profit organizational forms in addition to the "super PACs"), but the individual right to contribute it was recognized by the Supreme Court back in 1976, in Buckley v Valeo. That's a fact.

But factoids dominate this debate, and, by now, it is probably futile for me to continue contradicting them. The belief that Citizens United imbued Adelson and others with the right to indulge in independent political expenditures is pervasive and probably un-correctable. It is now an article of faith among reformers that that Citizens United is directly responsible for outsized, independent expenditures. Facts matter to Citizens United critics, except when they don't.

Consider this claim disseminated by NPR in a report on the recently aborted anti-Obama/Rev. Wright ad proposed to billionaire Joe Ricketts: "Even if the content of this proposal is dead for now, the concept illuminates something new in 2012. Since the Supreme Court opened the doors to unlimited spending by outside parties, any billionaire with an idea can try to tilt the scales."

How soon they forget. In 2004, six years prior to Citizens United, a few billionaires with ideas funded the swift boating of John Kerry, which helped "tilt the scales" for George W. Bush (and, as the McConnell brief notes, George Soros "spent over $24 million supporting Democratic candidates that same year."). Indeed, decades prior to Citizens United, before a billion was the new million, rich people were trying to "tilt the scales," as veterans of the 1968 McCarthy presidential campaign, funded by a few rich liberals, can attest.

Today, super-rich conservatives are committing vast sums to defeating President Obama and delivering the Senate to Republicans. Super-rich liberals are holding back, partly out of disdain for the process, Democratic candidates lament. So it's not surprising that Democrats tend to favor campaign-finance restrictions while Republicans oppose them.

Money talks, critics of Citizens United complain (all the while insisting that money isn't speech.) But if Republican money effectively buys votes, don't blame the Court, and don't just blame the Koch brothers. Blame the voters as well. Independent expenditures can't exert undue influence on a skeptical, informed electorate not susceptible to the bombast, melodrama, or sentimentalism of political advertising. Can a handful of billionaires buy the election? Perhaps, when facts don't matter.