Is Citizens United a Big Deal Only Because People Mistakenly Think It Is?

Last week The New York Times ran yet another story that tries to blame Citizens United for the Republican advantage in political ads sponsored by independent groups, a theme that Democrats have latched onto as pre-emptive excuse for their impending midterm losses:

The dominant story line of this year's midterm elections is increasingly becoming the torrents of money, much of it anonymous, gushing into House and Senate races across the country….

Skirmishing between Democrats and Republicans over the spending, which has overwhelmingly favored Republicans, reached a fever pitch this week, with charges and countercharges, calls for investigations and calls to block them….

The explanation for how these interest groups have become such powerful players this year includes not just the Supreme Court's ruling in January in the Citizens United case that struck down restrictions on corporate spending on elections, but also a constellation of other legal developments since 2007 that have gradually loosened strictures governing campaign financing and the regulation of third-party groups.

Add in the competitive political environment, with Republicans ascendant, the Obama administration struggling to break the perception that it is hostile to business, and the resulting stew is potent.

In the end, though, it is the decision in Citizens United v. Federal Election Commission that remains the touchstone.

Why is Citizens United "the touchstone"? Mainly because news outlets such as the Times insist on portraying it that way, notwithstanding the evidence to the contrary:

Interestingly, the legal changes directly wrought by the case have turned out to be quite subtle, according to campaign finance lawyers and political operatives. Instead, they said, the case has been more important for the psychological impact it had on the biggest donors.

"The difference between the law pre- and post-Citizens United is subtle to the expert observer," said Trevor Potter, a former chairman of the Federal Election Commission and a critic of the ruling. "To the casual observer, what they have heard is the court has gone from a world that prohibited corporate political speech and activity, even though that isn't actually the case, to suddenly for the first time that it's allowed. It's that change in psychology that has made a difference in terms of the amount of money now being spent."

It is pretty interesting that Citizens United did not make a dramatic difference in the restrictions facing partisan hacks like Karl Rove, especially because the Times keeps implying that it did. According to the new, revised "story line" (who is it that comes up with these story lines, anyway?), Citizens United was not that big a deal in legal terms, even though critics of the decision from President Obama on down portrayed it as the end of our democracy. The problem is that some donors—possibly including corporations as well as wealthy individuals—mistakenly thought it was a big deal and increased their giving based on that erroneous impression. And where is the evidence to support that thesis? The Times offers this:

"The principal impact of the Citizens United decision was to give prospective donors a general sense that it was within their constitutional rights to support independent political activity," said Steven Law, head of the Republican-leaning group American Crossroads and its affiliate Crossroads GPS, which have emerged as major players in this election. "That right existed before, but this Supreme Court decision essentially gave a Good Housekeeping seal of approval."

Benjamin L. Ginsberg, a campaign finance lawyer at the Washington firm Patton Boggs who has advised a long list of Republican-leaning groups over the years, described the ruling as a kind of "psychological green light" for donors.

Then again:

Nevertheless, Fred Malek, a longtime Republican operative who is helping to lead fund-raising for the Republican Governors Association and is chairman of a new nonprofit advocacy group, American Action Network, said the ruling had seldom come up in his conversations with donors.

"I don't find anybody who is contributing based on that ruling," he said. "People are contributing because they have deep reservations about the policies and direction of this Congress and this administration. That's what's bringing them in."

One reason Citizens United did not make as big a difference as its critics warned, according to the Times, is that the Supreme Court had already (in the 2007 case FEC v. Wisconsin Right to Life) narrowed McCain-Feingold's ban on "electioneering communications" to exempt "genuine issue ads" and cover only "express advocacy" or its "functional equivalent." But there was no election cycle after McCain-Feingold took effect in 2002 when politicians on both sides of the aisle didn't complain about nasty ads sponsored by shadowy groups. And the ban on "electioneering communications" supposedly was necessary because issue ads had rendered the pre-existing ban on express advocacy, also overturned in Citizens United, utterly ineffectual. Maybe the real impact of Citizens United is to be found elsewhere, among organizations that lacked the resources and legal sophistication needed to evade the government's obstacles to freedom of speech.