According to The New York Times, This Is the 101st Century


Over at The Atlantic, Wendy Kaminer catches two recent whoppers told by prominent critics of Citizens United v. FEC, the 2010 decision in which the Supreme Court overturned restrictions on  the political speech of corporations. In a January 18 Washington Post column, Katrina vanden Heuvel, editor of The Nation, identified former Sen. Russell Feingold (D-Wis.), co-author of the law that gave rise to the case, as "a victim of Citizens United spending." But Vanden Heuvel refutes herself by supplying a link to a Nation interview in which Feingold says:

Money in politics is a huge issue. But let's be clear: I certainly wasn't underfunded [in 2010]. I don't think another $100 million would have changed the outcome of my race. I don't think even $100 million would have mattered, because of the mindset that had developed, because of the desire on the part of a lot of voters to send that message.

Kaminer concludes that "it takes chutzpah, shamelessness, or negligence to cite as support for a factual assertion an authoritative statement that directly contradicts it." The other blatant misrepresentation she identifies is quite familiar by now, having been endorsed by President Obama in his 2010 State of the Union address, during which he claimed that in Citizens United "the Supreme Court reversed a century of law." This was the statement that apparently provoked Justice Samuel Alito, sitting in the audience, to shake his head and mouth the words "not true." Kaminer cites a variation on it in a November 22 New York Times editorial that claimed "the majority [in Citizens United] overturned a century of precedent that it had twice recently reaffirmed."

A fair reading of these statements is that the Supreme Court repudiated its own century-old precedents, revising case law that had been well settled since the Taft administration. In fact, the two decisions that the Court overturned, McConnell v. FEC (which upheld the Bipartisan Campaign Reform Act, a.k.a. McCain-Feingold) and Austin v. Michigan Chamber of Commerce (which upheld a law that prevented corporations from running ads in support of candidates for state office), date from 2003 and 1990, respectively. But overturning 100 years of precedent sounds five times more radical than overturning 20 years of precedent, so that is the number that critics of Citizens United routinely use.

Even if we read the claims by Obama, the Times, and all the others more charitably by assuming they were talking about statutory law, as opposed to Supreme Court precedent, they are still off by nearly half a century, since Congress did not ban independent expenditures by unions and corporations until 1947. Perhaps Obama et al. are thinking of the ban on corporate contributions to federal candidates, which was imposed in 1907. The thing is, Citizens United did not affect that ban at all, although hyperventilators who warn that our democracy will soon drown in a flood of corporate money frequently imply otherwise. In its November 22 editorial, for instance, the Times said the decision "unleashed corporate, union and other money into electoral politics." And in a February 2010 editorial that Kaminer also cites, the Times falsely claimed that the Court had granted "constitutional sanction to unlimited corporate and union campaign contributions."

As Kaminer relates, former ACLU Executive Director Ira Glasser objected to that characterization and asked the Times for a correction. After months of exchanges with the paper's corrections department and its "public editor" (during which time the "century of precedent" claim appeared), the Times clarified its position: It would continue to deliberately conflate independent expenditures by corporations, which are permitted as a result of Citizens United, with corporate campaign contributions, which remain illegal, because it thinks they amount to pretty much the same thing. As Editorial Page Editor Andrew Rosenthal put it, "It is our view that in this century, there is no longer a whit of difference between allowing a corporation to contribute with no limits and no transparency to politics, and allowing them to contribute to individual candidates." This sounds to me like a post hoc rationalization for embarrassing misstatements that the Times is determined not to correct. But even if we take Rosenthal at his word, the Times is not simply arguing that the practical effects of independent expenditures are exactly the same as the practical effects of corporate campaign contributions. Instead it is translating this dubious conclusion into indisputably false statements about the legal changes made by Citizens United.

For more on those changes and the hysterical reaction to them, see my December Reason cover story. The eminent First Amendment litigator Floyd Abrams (who represented the Times in the Pentagon Papers case—which, unlike Citizens United, was a good First Amendment decision because it protected the free speech rights of corporations that own newspapers) analyzed the "fury" and "fierceness" of Citizens United alarmists in The Yale Law Journal last fall.