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.

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  1. The Dems certainly need a scapegoat for why they’re going to get murdered in November. Why not this?

    1. Corporations! Rich people! Racism! Capitalism! Libertarians [obs.]!

    2. We lost the elections because the multinational endangered animal poachers made the Koch brothers tell Glenn Beck to brainwash the racist rednecks to pollute the world and eat fast food and child obesity and foreign oil and stuff.

      1. It’s all so clear now!

      2. Man, that’s some reality-based community.

  2. Why is Citizens United “the touchstone”? Mainly because news outlets such as the Times insist on portraying it that way[…]

    I am SHOCKED!!!

    1. Some corporations are more equal than others, eh?

  3. It’s interesting that you criticize the NYT for biased reporting against your position, and then cut and paste a bunch of quotes from the NYT article that support your position.

    I don’t mean interesting in a good way.

    1. Please don’t be his porn.

      1. Don’t you ever go out for a cigarette break or something, InsulinShock? It’s a nice day out there. You need some fresh air.

        1. Did you ever see that Star Trek episode where they went to a planet with a library that had a time machine in it? Remember the librarian, Mr. Atoz? That’s SugarFree. I mean literally.

    2. Sometimes, while I’m looking deep into Hobie’s eyes while fondling his boy-like weiner, I begin to pant, then moan loudly. And when he rips that string of pearls (and these are some big pearls) out of my ass, I come by the bucketful all over his smiling face. No one, and I mean no one is ever going to steal him away from me.

      1. Just don’t let him keep the clothing afterward.

  4. But what about that shadowing foreign conspiracy seeking to enslave us?

    AKA the Chamber of Commerce

    1. It’s actually mostly a domestic conspiracy.

      1. Not according to the Obama Administration.

        1. They talk about the foreign donors because they know it will play well with the nation. Just like Republicans talk about “Socialism” because they know it will play well with their base.

        2. Different bullshit for different idiots.

    2. The Chamber of Commerce?

      I thought the foreign conspiracy trying to enslave us was the New York Times Company, agent of Mexican billionaire Carlos Slim.

  5. “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.”

    No kidding.

    Any mention of the deep wave of buyers’ remorse amongst people who contributed gobs of cash to Obama, not so very long ago?

  6. Maybe you should re-name “Reason” to “Corporations ‘R’ US”.

    1. Please don’t be his porn.

      1. Go ahead, spooge all over my comment. This is the internet.

    2. Come here you little cutie! I’ve got two fingers to paradise.

      1. Not porny enough.

        1. Just for you!

          OO=======D – – – —— – –


          1. Is that supposed to be scary? Or just sad?

            1. Erections scare you? How odd.

    3. Maybe you should re-name “Reason” to “Corporations ‘R’ US”.

      ‘KochSuckers’ has a better ring to it.


    1. A group of people aren’t people!

      1. Except if they’re a group of Union people, members of ACORN.


  8. NPR’s Mara Liasson has been all over this. I have never heard such biased journalism, even from NPR. After I listened to her “reporting”, which consisted mostly of Democrat political operatives spouting end of the world crap, I felt the strong urge to take a shower.

    1. I’ve been following this as well. It isn’t just Mara over at NPR. Their whole lineup has been running with the meme for a while now. Usually with a round table of experts ranging from the moderate left to the far left – all in agreement that Citizens United is destroying politics. Never with any facts behind it, just vague references to “a flood of money”.

      The other day they specifically referenced my state of Florida as a location for the flood. But the only attack ads I’ve really noticed down here were the ones by the democrat’s Alan Grayson that managed to rally some support for his woefully underfunded opponent. Kinda the exact opposite of what they were claiming, but whatever…

    2. Time, then, to shut down National Public Radio, Inc. It’s a corporation, and it even accepts foreign contributions, so it doesn’t have any right to spend money on political issues.

    3. Correct me if I’m wrong, but isn’t the Corporation for Public Broadcasting their main backer?

  9. 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.”

    This was written by what some people call the finest newspaper in the world? Newspapers deserve to die a wretched, ugly death of slow starvation while their former readers laugh and ridicule them.

    And don’t get me started on NPR’s coverage of the Citizen’s United case.

    1. It’s like when fundamentalist Christians whine about the “Anti-Christian bias” of the media. Nothing but absolute submission sounds “right” to a True Believer.

      1. I don’t always drink beer. But when I do, I perform unprotected cunnilingus on my mother.

      2. “Nothing but absolute submission sounds “right” to a True Believer.”

        Let’s talk about ecology, shall we?

        1. If you want to we can. I do enjoy mocking market fundamentalists, though.

          So go ahead, tell me about ecology.

          1. I’m not qualified to give any sermons on the topic, but I’d be blessed to sit among the congregation and say A-men from time to time. Tell us Pastor atheist, what will the world be like when humans stop sinning against nature and exploiting its natural resources.

            1. Ecology is best considered a lower-level function than economy, and necessary for the economy’s existence. Without a relatively stable ecology, a human culture can’t have an advanced economy.

            2. In the current age, humans have the numbers and power to do massive damage to the world ecology, and therefore to their own economy. In this age, caring about the world ecology is just elightened self-interest.

              1. I’m already aware of the malthusian warnings. I’m ready to believe. I’m ready to paint with all the colors of the wind. Just tell me what human activities are totally harmonious with nature. What sort of human ecological impact is a good impact? or is no impact the only good impact? How many people can be on the planet at any one time? How is there an economy without exploiting natural resources? What is it about the human that places him outside the scope of nature making his impact on it external and un-natural? How did natural selection work before humans invented the extinction of entire species? Did bottlenose dolphins learn rape from us?

                1. Of course, humans are part of nature, humans will always have some contention with the rest of nature, and humans are always going to need to exploit natural resources in some way. The important things are to realize that while Earth’s ecology is enormous it is not infinite, and that in destroying the ecology we eventually hurt ourselves, since we are just part of it.

                  1. “…while Earth’s ecology is enormous it is not infinite”

                    Nothing in reality is infinite. Man’s capacity to find new ways to use materials that were once useless is limited only by his ability to think and produce. But this requires freedom to think and act.

                    Since your concern is for the well being of humans and not a sense of duty to Earth as a spiritual being, I assume you would have no problem with mankind moving to a better planet after using up all the resources on earth. Am I right?

                    1. I do have a problem with it on the basis of two things:
                      1. Such a move would almost certainly fail.
                      2. It’s a pointlessly destructive plan.

                      There is no good reason to destroy Earth’s ecosystem. The fact that you immediately go there makes me consider you a possible sociopath. More likely, though, you don’t give a shit and are only trying to get a reaction. Which is only childish and stupid.

                    2. “There is no good reason to destroy Earth’s ecosystem.”

                      The assumption that people left free to pursue their own happiness and luxury will consume every human life sustaining thing in the world is your premise not mine. My premise is that we will produce more and more value with less and less waste as technology advances and that the poorest people alive a thousand years from now will be richer than the average American right now. And most of the global catastrophe scenarios will remain the fantasies of nihilists just like the warnings in the past.

                      But even if human survival came at the cost of destroying the ecosystem(which it doesn’t unless you mean some delicate, perfectly balanced and sustained screensaver which never existed and couldn’t anyway), that would be a perfectly good reason to do it.

                      “The fact that you immediately go there makes me consider you a possible sociopath.”

                      There’s absolutely no reason to think this planet or any other will stay habitable forever. Are you saying that my hope that humans figure out a way to live past that point rather than willfully die out of a sense of duty to some disembodied earth soul makes me a sociopath? I immediately went there to show you that you are religious.

                    3. The assumption that people left free to pursue their own happiness and luxury will consume every human life sustaining thing in the world is your premise not mine.

                      Um, no, that’s not my premise. My premise is that we depend on Earth’s ecosystem, and therefore it would be really stupid to destroy it. No clue how you turned that into “people will consume every resource on earth”. Maybe this is one of those exercises where you see who can say something dumber?

                      Are you saying that my hope that humans figure out a way to live past that point rather than willfully die out of a sense of duty to some disembodied earth soul makes me a sociopath?

                      No, I’m saying that assuming the destruction of Earth is a horrible place to start, and suggests that you’re mentally unbalanced.

                    4. “My premise is that we depend on Earth’s ecosystem, and therefore it would be really stupid to destroy it.”

                      You couldn’t be less clear when you say things like “destroy the ecosystem”. It can mean anything. It could mean sapping the planet of all its life sustaining resources or killing lots of mosquitos. These terms are intentionally open ended because arbitrary power is the goal. By going to the extreme, I was just trying to get you to define terms. You did enlighten me on my psychological problems but not on what constitutes a destroyed ecosystem and why free individuals will cause that and why the government would know all the right things to stop people from doing or to make people do or whether or not you can sing with all the voices of the mountain(last time I promise).

            3. Can I get an Ay-MEN?

              1. Have you ever heard the wolf cry to the blue corn moon?

                1. No, but it sounds pretty awesome.

                  1. Have you ever been in a… in a Turkish prison?

                    1. Y’ever seen a grown man naked?

  10. Maybe, just maybe, people think Citizens United is a big deal because every half-retarded lefty in the country has been talking it up since the decision came down? I know it’s a stretch, but if you repeat the big lie often enough some people are going to believe it.

  11. I owe those unions. When their leaders call, I do my best to call them back right away. I don’t consider this corrupting in any way; I don’t mind feeling obligated. – Barack Obama, The Audacity of Hope, 2006

    1. I love that quote. It’s uncharacteristically honest for a politician.

      1. I love what it says about the weak and ineffective campaign run against him in 2008. Similar to 1992, the republicans apparently felt destined to lose and went home without firing a shot.

        If I had been running their campaign, that text would be burned into the minds of every voter by election day. Bush the Elder had a similar opportunity with the ever-changing story of Clinton’s draft deferment, but also chose to forgo such opportunities in the interest of decorum. Bush’s choice paid out pretty well in 1994, so maybe history does repeat itself.

  12. “The dominant story line of this year’s midterm elections is increasingly becoming the torrents of money,”

    Actually, the dominant story of the midterms is the Democratic Party’s panic about not being able to change the dominant story line away from jobs and the economy.

  13. Where’s Rahm Emanuel when you need him?

    1. Rahm is attempting to keep the proud tradition of corrupt Illinois politics alive.

  14. Long ago (3 days) and far away (Balloon Juice)

    J sub D – October 8th, 2010 at 6:18 pm

    @Linda Featheringill:
    As you may be aware, I’ve forsworn voting for either of the two major parties because they are both filled with lying assholes too cowardly to make an unpopular decision, more concerned with maintaining the trappings of power than actually addressing real problems.

    I’ve no dog in this fight, but it sounds like the “Why We Lost” narrative is going to be “Citizen’s United! The evil corporations brainwashed the citizens”. [bold added]

    This comment was largely agreed to but the skeptical tone was not well received.

    1. Balloon Juice??? Yechh

      1. Ahh, they’re nice enoyugh folks. Earnest and more knowledgable that most political sites.

        Awfully blue, but I can’t hate them

  15. What amazes me is that reports in the Wisconsin governor’s race show more “soft” money spent on the Democrat side. Why are the D’s complaining?

    1. Because they like to deceive voters into thinking that rich people and corporations don’t give huge sums of cash to the Democrats, too.

  16. In spite of gazillions spent on advertising, New Coke failed because the product sucked.

    Maybe American’s are not as brainwashable as alleged.

    1. Some commie put that apostraphe up there, not me.

      1. Imagine no possessives. It’s easy if you try.

        1. Very nice. Well done.

        2. Imagine there’s no articles
          I wonder if you can

          You may say I am dreamer
          But I am not only one

  17. I wonder if the NYT editorial board would have any reservations about elections composed of approved candidates selected and entirely funded by the federal government?

    1. Yes, and these guys are trying to bring the gulag to a state near you.

  18. Just another tiny example of why I’ll never voluntarily participate in this corrupt process of government. The one thing the politicians can’t do is to accept responsibility for their own actions; it’s always some dark evil outside force that’s to blame.

  19. The revised progressive story line seems to be that what’s now wrong with Citizens United is not that it allows corporations to engage in political speech, but that it shields those corporations from disclosing their donors.

    Are they correct about that? When I read about the decision it seems to say that the Court upheld all disclosure requirements, so I’m not sure where they are getting the idea that it doesn’t require disclosure. It’s complex, though, so I might not understand.

    It seems possible that progressives are just using Citizens United as an excuse to pass extra disclosure laws.

  20. Gotta love the greedy politicians who spend literally millions to obtain a job that pays thousands, and then have the AUDACITY to complain that others are spending too much moola on their own version of HOPE.

    1. Define “pay”. That’s a bit like having a joint bank account with a billionare and saying, “I only make $5,000 per year.” Politicians may not get much in a bank account with their names, but they control million to trillions in a budget each year.

  21. At the Sept 2010 protests against Ahmadinejad, my friend asked me why there were hardly any Jews at these protests anymore. He remembered that Jewish organizations used to hold large protests against Ahmadinejad and noticed that now the protesters are mostly Iranian Diaspora. I explained that in the Fall of 2008, many Jewish nonprofits planned a New York City rally against Ahmadinejad. They invited both Palin and Clinton to speak. Clinton did not want Palin to have a forum during the election. Clinton threaten to revoke the nonprofit status of all the nonprofit organizers on campaign finance grounds. The nonprofits backed out and the rally fell through. The momentum against Ahmadinejad was lost. Between Fall of 2008 and June 2009, there were no major rallies against Ahmadinejad. That must have made him feel rather confident about the indifference of the West towards his actions. I can only imagine how the events of June 2009 might have been different in Iran if we had keep up the rallies against Ahmadinejad.

    1. You’re pretty deluded if you think Ahminejad gives half a shit about rallies against him in the US.

  22. By far, corporate money will go to entrenched power. If more goes to Republicans this year, it’s only because the corps think Republicans will be in power next year.

  23. Sorry, unlimited anonymous corporate political donations are a big deal. Try again.

    1. No, they’re not. Try again.

    2. They’re explicitly legal in Sweden. Would you care to show how they’ve hurt Sweden in any way?

      1. Well, they’re, uh, corporations! And that’s bad, right?

    3. Sorry, unlimited anonymous corporate political donations are a big deal unless they go to Democratic candidates.

      There, that’s much better. Isn’t it, Gary?

  24. Is it the Citizens United decision that made it possible for the various major donors to the “Yes on 19” campaign to make such large contributions?

  25. Yhere is no controlling legal authority that says this was in violation of law… bitches. I got away with it.

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