Citizens United – The Minimal Impact Argument
Matt Bai of New York Times Magazine gives a spirited defense of the Citizens United decision. He begins by telling readers what he thinks the decision says and why, in his opinion, the decision has had only the most minimal impact on political fund raising and spending in 2012.
Personally I disagree with Bai’s take, both as to his interpretation of what the holding of the case really is and his interpretation of its impact on this election cycle. But, while I disagree with his take, the presentation is literate, intelligent and thought provoking. To the extent people want to know both sides of an issue, it’s worth a look. Take a read and see what you think.
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That was a pretty clear and rather sane article on the topic. I would find fault with 2 things in it.
First, one of the main points seems to be that Citizens United didn’t have that big of an impact so its not really a big deal. To that I would say that the public’s concern with campaign finance reform didn’t appear out of thin air following Citizens United. It was a pretty important topic well before that. People thought there were serious issues with how candidates are being bought and paid for. What Citizens United did, was to take our concerns and have them basically shat upon by the Supreme Court, who said we see no problem with at all soulless corporations explicitly interested in profit and accountable to no one having as much influence as they can buy over our public officials.
The second point that seems totally arbitrary was the opinion of one political operative that $500Mn is some sort of limit where you will see nothing but diminishing returns on campaign advertising. This seems to me to be an educated guess at best. In fact, I think if anything the Obama campaign of ’08 which raised more used its funding advantages in excess of that to get him elected, which would be evidence that $500Mn is not some sort of limit to campaign spending. And of course, I’m pretty sure everyone’s opinion of what to spend on a campaign will be radically altered by the deluge of cash on this year’s election. Time will tell.
It’s funny that here the public’s concerns seem important to you while you actively mock the public’s support of voter ID laws.
Um, when did I do that?
Interesting article Elijah and more well reasoned than many. Of course I still concur with the dissenting opinion which requires no convuluted rationalizing to grasp. Occams razor and all that. From the link:
“what Citizens United intensified but by no means created, is a world in which a big part of the money in a presidential campaign is spent by political entrepreneurs and strategists who are unanswerable to any institution. Candidates and parties who become the vehicles of angry outsiders, as Mitt Romney is now, don’t really have control of their own campaigns anymore”
It’s beyond me how that outcome can be a good thing as it only provides more opportunity for excuse making on the part of the candidates. Admitting one has lost control of the message doesn’t exactly point up leadership qualities though. The next few months are bound to be interesting…
Please tell me where I am wrong.
It is my understanding that labor unions were able to take union member dues and spend those dollars on political races supporting certain candidates, either directly or indirectly (which did not leave much question who it was). That was before the CU decision by SCOTUS.
If that is true, then why is is worse for the corporations to take stockholder moneys and spend them on the same political races? In most cases, they will be supporting the opposition candidate from the union, but is that not fair?
Ironically, I a story on NPR talked about the impact of Citizen United and the top 80 individuals contributing money, apparently unaware of the fact that the ruling didn’t affect individuals. Money has been an issue for a long time. I remember when there was just as much hue and cry over the 527′s.
The fact is that the problem that reform faced before, and that reform faces now, is Buckley v. Valeo (1976?) which ruled that “money is speech”. That mean that if you had a cause, and a lot of money, the government couldn’t stop you from using one to help the other. Since then, all of the commotion and the laws have just change how that money gets used, since legally you can’t stop it.
Except to the degree that it being used to “rally the troops” all this effort is being wasted. If you want to do something about money in politics you either need to have enough public financing so that you don’t need private money, or you need to amend the constitution.
It seems to me the “money is speech” ruling makes it almost impossible to tell the difference between campaign donations and bribery. What a garbage ruling.
Buckley v. Valeo dealt with the millionaires exception. In that case the Supreme Court decided that candidates could not be restricted in how much of their own personal wealth they spend on their campaigns.
The Davis case later found that fund raising restrictions that penalized wealthy individuals who spent their own money as candidates was also constitutionally impermissible.
In the eyes of many – dare I say most – constitutional scholars, those decisions had to do with matters different than those decided in Citizens United. The link can be made between the Buckley and Davis cases and Citizens United, but those cases dealt with individuals running for office [no corrupt influence possible in paying for your own campaign] and “independent expenditure groups” being found to have an unlimited and unlimitable right to expend as much as they like in support or opposition to various candidates.
Remember that McCain-Feingold’s independent expenditure provisions had been previously upheld notwithstanding Buckley and Valeo. Then Sandra Day O’Connor retired and the Court changed course by taking Citizens United and making the decision there.
Your link to the Article seems to be broken and the New York Times search engine is stuck on ’forever’ as an answer to the question how long will this search take?
It is a popular misconception that the majority option granted an absolute right to corporations. This is not true. The court made a finding that Congress didn’t establish that the corporate money in the last 90 days of the election corrupted the electoral process. In essence the court imposed a retroactive requirement on to Congress and then ruled that the Congress hadn’t meet this requirement that they had never heard of that in the opinion of the majority they couldn’t have met this requirement even had Congress known about so no one should come to the court with proof that campaign commercials actually work. The majority opinion is based on the commercials not working, not impacting the election.
merkin,
I just double checked the link. It works fine on this computer. Whatever the glitch might be in trying to link from your computer, I don’t have the tech expertise to discern. Regrets…I think you would have liked the article.
ES
That was only one of the three types of limits the court found unconstitutional. It also ruled illegal limits on independent expenditures and the limits on what campaigns could spend themselves.
From http://www.oyez.org/cases/1970-1979/1975/1975_75_436/….
“Second, the Court found that governmental restriction of independent expenditures in campaigns, the limitation on expenditures by candidates from their own personal or family resources, and the limitation on total campaign expenditures did violate the First Amendment. ”
Ironically, this last one, limits on campaign expenditures, is what the current law tries to finesse by giving campaigns free money but which Obama opted out of in 2008 when he outspent McCain.
I was unfamiliar with this one. It seems in line with Buckley v. Valeo though and (just looking at wikipedia) even the dissenting opinions seemed to feel that upholding McCain-Feingold would require overturning Buckley v. Valeo.
Citizens United is indeed different, thought it seems different in ways that make it less important than Buckley v Valeo. All Citizens United did was make convenient the pooling of money that individuals could always spend as they wanted.
Even if you overturn Citizens United, PACs that Buckely v. Valeo allowed to form will just resurface. There are just to many ways of moving the money into the hands of individuals who can spend it any way they like. The only real question is whether Citizens United is more important in protecting unions who don’t have as many tools for that. Tough I happen to think they wouldn’t have any problem either.
I don’t know a lot about the Davis case. And how much chance it might have had if O’Connor was on the bench, but in any case it was focused on self funding campaigns and not independent expenditures.
I have a different take on Citizens United’s impact. What, exactly, are they going to spend their money on?
– TV ads are a waste. No one watches standard TV anymore. Money down the drain.
– Fat paychecks to talk radio? That’s preaching to the choir, wasted money.
– YouTube channels? Everyone will link to rebuttal sites, which will deaden their impact.
– Internet advertising? Dead as a useful mechanism, ask marketing firms for the real truth of effective Internet ad campaigns. Waste of money.
The good old days of advertising is dead. It’s all search engine control, social media manipulation, groupons, and Facebook, none of which are useful in politics.
The only thing where money will be useful is staging rallies and getting out the vote. Advertising is dead, just like the media companies who depend on it.
This show what I believe is a problem with a lot of people . They don’t care at all about the merits or constitutionality of a law just if they agree with what they think the result will be. Like if something is in there view positive then even if it is never even hinted at in the constitution then SCOTUS should declare it a constitutional right or they are hacks. The opposite of course holds true where regardless of the constitution saying something is forbidden if they agree with the result……….
Well actually my problem is in reading the legal definition of bribery, I can see no apparent difference between it and what we are allowed to do giving politicians campaign money. They’ve basically done everything but say that bribery is a form of 1st amendment protected free speech. This is especially true in the donations from corporations as opposed to individuals.
A corporation can not have an opinion as to how good a politician is. It can only shell out money with expectations of a return. Sheldon Adelson can say I’m giving Romney $10Mn because I think he’s going to fix this country, but Exxon has only one reason to give him $10Mn, because its expecting him to use his influence to benefit the company. That is pure bribery.
We are conflating several issues here.
-If you give Obama or Romney a check, this isn’t an independent expenditure, it is a campaign donation (which, AFAIK, can be regulated). Are campaign donations bribery? The premise is that they aren’t unless there is a quid pro quo involved.
-The principal that money is speech is not just corporations (or even organizations). In involves individuals. If George Soros decides to “save the country” it is his right to use his freedom of speech, either through time or money, to try and do so.
-The issues of whether fundamental rights like freedom of speech rest with organizations, or just with individuals, is more open one. However, even then one should remember that this applies to unions. If corporations don’t “have opinions” then neither do unions. The how well organizations are at transferring money to individuals. I think most will be able to so the change wouldn’t make much differences. But if anyone does have a problem, it is mostly likely to be unions.
Well actually my problem is in reading the legal definition of bribery, I can see no apparent difference between it and what we are allowed to do giving politicians campaign money. They’ve basically done everything but say that bribery is a form of 1st amendment protected free speech. This is especially true in the donations from corporations as opposed to individuals.
then every dime that unions have ever spent on canadates, 99% dem even when their members are much more diverse, is bribery right? Or is it just that even if they don’t get a particular outcome they know in general because of party policies they will end up better if Dems are elected. Honestly most politicians state their general policies and between two canadates it shouldn’t be hard to pick the one you believe will tend to go your direction without a hint of change because of any donation. Honestly there is so much money coming in they hardly need to take bribes. If they are popular and keep getting elected they will always have money thrown at them and don’t need to do anything but appeal to the voters. Keeping in office is much more important than keeping any individual, or company, or industry, happy.
And I can’t see much difference in giving a politician your vote in exchange for advancing your interests. Nor, if you’re a politician, in buying off a class of voters with tax exemptions or entitlement programs. This is the essence of politics.
Legally, though, I believe the quid-pro-quo needs to be more specific to count as bribery. That is, according to a 1999 SCOTUS ruling, you need to be providing the money (or other consideration) in exchange for a specific official act, not for generally favorable representation.
Where does proper representation end and bribery begin? It seems a matter of semantics.