What Does Citizens United Have to Do With the Republican Spending Advantage?

The New York Times reports that "outside groups supporting Republican candidates in House and Senate races across the country have been swamping their Democratic-leaning counterparts on television." The Times cites "an array of Republican-oriented organizations that are set up so they can accept donations of unlimited size from individuals and corporations without having to disclose them." It worries that "a relatively small cadre of deep-pocketed donors, unknown to the general public, is shaping the battle for Congress in the early going." It says "Democratic officials" fear that "corporate interests, newly emboldened by regulatory changes," are trying to "buy the election." It says "the snapshot of early television spending would seem to be a fulfillment of Democrats' worst fears after the Supreme Court's ruling in the Citizens United case in January that lifted a ban on direct corporate spending on political campaigns."

Yet as the Times eventually concedes, "it is not clear…whether it is actually an influx of new corporate money unleashed by the Citizens United decision that is driving the spending chasm, or other factors, notably, a political environment that favors Republicans." In fact, the spending cited in the story is almost entirely by rich individuals, 527 groups, and 501(c)(4) organizations—all of which was perfectly legal before Citizens United. Further undermining the notion that the decision explains the Republicans' spending advantage, the Times notes that "corporations have so far mostly chosen not to take advantage of the Citizens United ruling to directly sponsor campaign ads themselves." It quickly adds that former FEC General Counsel Lawrence Noble thinks "some [corporations] are most likely funneling more money into campaigns through some of these independent groups," although "they had the right to make such contributions before the ruling."

In short, there is evidence that raring Republicans, who hope the continuing economic malaise and  the unpopularity of Democratic policies will help them retake the House this fall, are outspending disillusioned and demoralized Democrats. But contrary to the impression left by this story (especially its opening paragraphs), there is no evidence that Citizens United has anything to do with the spending gap.

By the way, notice how the phrase "outside groups" (as opposed to, say, "independent groups") implies these organizations, unlike candidates and parties, have no business participating in political debates. It's the same language that Rep. Michael Capuano (D-Mass.) used when he welcomed the chilling effect of the DISCLOSE Act, which would have imposed disproportionate burdens on Republican-leaning organizations in the name of transparency:

I hope it chills out all—not one side, all sides! I have no problem whatsoever keeping everybody out. If I could keep all outside entities out, I would.

Similarly, back in 2002 Sen. Maria Cantwell (D-Wash.) argued in favor of McCain-Feingold's ban on electioneering communications, one of the speech restrictions overturned in Citizens United, by explaining that the aim was "slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves." It's not surprising that incumbent politicians want to restrict the debate to insiders or eliminate ads that criticize them. Fortunately, the First Amendment does not allow them to do that.