Citizens United

Our Presidential Cycle Shows Why Citizens United Was Decided Rightly

All this money is being spent, yet the "establishment" is very much on the defensive.

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Thanks to Citizens United, this book can't be censored by the government.
Credit: JeepersMedia / photo on flickr

Among the many narratives emerging from this year's presidential race is the parade of pratfalls—a very expensive parade—that appears to be Jeb Bush's candidacy. Bush and the PACs supporting him have far outspent all other candidates on advertising, and for what? He's polling terribly and Iowa and slightly better in New Hampshire. They've spent almost $50 million on advertising and have failed to catch fire with Republican primary voters so far. (I personally have taken to describing Bush based on his debate performances as what you'd get if Lisa Simpson grew up to be a Republican.)

Today, by the way, is the sixth anniversary of the pivotal Citizens United v. FEC Supreme Court decision, which struck down regulations restricting outside spending and advertising to influence elections by corporations, nonprofits, labor unions, and other groups.

But for enemies of that decision, the only word that matters is "corporations." Today on the anniversary, the hashtag #CitizensUnited trended for a little while on Twitter, and it caught my attention when Democratic Rep. Jared Polis of Colorado posted several tweets condemning the decision, calling for it to be overturned and complaining about the drastic increase in spending on elections from outside sources.

I interviewed Polis for Reason a couple of years ago because, though he is a Democrat, he leans libertarian in many areas, including in tech freedom and privacy, marijuana legalization, school choice, and a lot of free market issues, and regularly engages with libertarians (including libertarian-leaning congressmen on the right like Justin Amash and Thomas Massie). On this issue, though, he is insistent that money isn't speech.

A funny thing I noticed when checking out the hashtag: All the top posts that aren't originating from progressive activist sources are from incumbent legislators complaining about "dark money" "buying elections." Recall that the Citizens United case is based on a documentary that was critical of Democratic establishment candidate Hillary Clinton. If elected, Clinton wants to make sure incoming Supreme Court judges would overturn the decision.

Polis, by the way, is one of the richest members of Congress. He earned his money in the private tech market developing e-commerce tools. That money helped him in 2008 to beat an establishment-backed candidate in the primary to land his seat. He also, according to the Washington Post, spread his money around to "outside groups" to help get other Democrats elected.

Now, in 2016, the establishment in both parties is in disarray and outside groups are partly to credit—or to blame, depending on where you sit. (And guess where you sit if you are an incumbent legislator?) If you value actual competitive presidential and congressional elections, I cannot imagine how you can look at the field in 2016 and think the Citizens United decision was a bad thing and think that money is itself going to determine the outcome of the elections. What it has done has helped "outsider" candidates help challenge the establishment.

Consider the candidacies of Sens. Marco Rubio and Ted Cruz. Set aside whether or not you approve of them or want them to win the primary or the presidency. Each of them ended up in the Senate by winning contested primaries against established, better-known Republican figures. They did so with the help of outside support and funding to help overcome the financial disadvantages that come from being challengers.

Now the two of them are seriously in the mix as potential presidential nominees. If that assistance were banned, would they be where they are now? What would that mean for the make-up of the race? We would have Donald Trump, who like Polis, is running with the help of his own wealth (though he is also getting donations). We may still end up with Trump, giving his polling, but we'll have to see.

We also have outside campaigns gathering money and spending it for the purpose of opposing Trump, though what Republican operative Liz Mair is doing is a little bit different from what Citizens United has authorized. She has set up a limited liability corporation so that conservatives and Republicans can donate to their efforts without having to be identified. Nevertheless, what Citizens United has actually accomplished is opening up the political marketplace to greater numbers of challengers. But as Bush's flailing shows, money coming from outside sources is not the only determinant of success. It helps people hear your message. It doesn't make them care.

Polis complained on Twitter that anonymous election spending has skyrocketed from $10 million to $300 million. That sounds big as a flat number, but keep in mind that's the cost of making a single summer movie. Frankly, if elections are supposed to be so important, shouldn't they be of greater financial impact that a chapter of Pirates of the Caribbean?

Ultimately, we should see attacks on the decision by the likes of Polis the same way we see efforts by unions to drive up the minimum wage. These are protectionist efforts meant to keep outsiders from competing. It will cost a lot of money for Republican opposition in Colorado to attempt to fight against what Polis has accomplished. He wants to make it harder to do so. So do all the other incumbents demanding campaign spending restrictions. They know full well it will give them the upper hand and make it harder to challenge them.

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  1. On this issue, though, he is insistent that money isn’t speech.

    How… many… times…

    I wonder if like other CFR supporters, Polis agrees that speech = money, something I’ve never ONCE heard supporters of CFR explain.

    Never. Once.

    1. The transitive property doesn’t apply to politics.

    2. CFR? Council on Foreign Relations? Code of Federal Regulations?

    3. Judging by the speaking fees that Hillary charges, speech sure is money.

  2. David Brat unseated the House Majority Leader, and he did so spending less money on his entire campaign than Cantor spent on steak dinners at fundraising events.

    1. Nothing I’ve ever seen remotely hints that anyone wants to “get money out of politics”. They want to control the money, and ensure it goes to the “right” causes and candidates.

      1. The problem isn’t that politicians can be bought. That’s human nature. The problem is that we’ve given them such power that they are worth buying.

        1. We have a winner.

          On a (slightly) more positive note, our politicians are so insanely corrupt that they aren’t even honest as politicians. Meaning, they won’t stay bought, for any price. You can only rent them.

      2. ^ DING DING DING

      3. Well, they say they want to “get money out of politics” all the time. What they never specifically address is exactly what they think would happen afterwards.

        1. The entire country would become Detroit, is the plan.

        2. I’ll believe they want to “get money out of politics” when everyone starts talking about tax cuts, instead of medicare for all.

  3. Here’s a lovely article by one of those mouth breathing morons: http://www.esquire.com/news-po…..niversary/

    This is the most singularly disastrous Supreme Court decision of my lifetime, including Bush v. Gore.

    I wonder if he would feel that way when President Trump tried to shut down Esquire because of political commentating before an election?

    Seriously, fuck anyone who has a problem with the decision that it was not okay for the government to burn books if they mentioned a political candidate 60 days before an election.

    1. So this person was born in 2000?

      1. ..when was Kelo v. Connecticut? That one was pretty darn derptastic.

    2. I agree. To me this is along with guns about the only two truly non negotiable issues for me in that if someone is on the wrong side of it, they are a fucking crap weasel I don’t care how great their other views are. It is nice that Pollis is all pro pot and school choice but his rejection of the 1st Amendment outweighs all of that by a country mile.

      1. It’s not that hard to understand, which just leads me to believe that progs are as evil as they make themselves look.

      2. I just want to see all the progs cleansed for my country.

    3. Bush v. Gore

      If the vote counts had favored Gore prior to the ruling and the SC justices ruled in exactly the same way, thus making Al Gore the President, nobody on the left would still be talking about the case.

      Principals…

      1. *Principles, not principals. Principals harass teachers at school. Principles keep harassment to a minimum.

        1. Whoosh…

    4. It’s pretty apparent from Sentence One of that article that the author has not actually read the decision, much less thought about it. Which is par for the course for articles about CU, of course.

  4. You just don’t understand.

    If Sanders loses the primary to Hillary, then Citizens United.

    If the democrat loses the presidential election, then Citizens United.

    All other outcomes are the brave people speaking out and standing up to the powers that be, despite Citizens United.

    Progtard fears never have to become a reality to be taken seriously. See net neutrality.

    1. A local campaign (which was successful) to forcibly extract campaign donations from the public was entirely predicated on “fighting shadowy outside money”. The campaign was almost entirely funded by wealthy, outside donors. When this was pointed out to them, they were entirely unapologetic.

      1. “It’s different when we do it.” – progtards

    2. Joe will be along shortly (ha!) to argue exactly that.

  5. We’ll see. So far Trump has asked nothing and Sanders very little. I’ll be interested to see in the latter case whether clicking to donate $5 online is a good reading of whether people are wiling to cross the effort barrier to vote in a primary or caucus. Although the fact that JEB couldn’t win the GOP primary if all the other candidates dropped out does speak to the limitaton of PAC money.

  6. I remember Limbaugh compared the total spending in a presidential election year (that is TOTAL spending on ALL national candidates for President, House and Senate) didn’t equal the amount of advertising for laundry soap. I think it was for 1996, but I can’t remember for sure.

    1. Also, the amount of money spent on campaigning in presidential election years has been rapidly increasing with each election cycle for decades, long before the dreaded Citizens United supposedly ushered in a new era of money in politics.

      1. Let’s not forget that the Obobo election machine had a *billion* dollars. Wonder if the leftoids want *that* money out of politics?

        1. Well the C.U. decision also removed limits on union spending along with corporate spending. Notice the proggies are only trying to restore the ban on corp spending while leaving the union freedoms untouched?

    2. Laundry detergent………..so much more useful than presidential candidates.

    3. Limburger said it, I believe it, that settles it.

  7. Even if, hypothetically, it were true that campaign spending was corrupting our political system and needed to be stopped, I don’t understand how giving Congress authority over the issue could possibly improve the situation. By acknowledging that legislators are beholden to their campaign donors and, consequently, don’t make laws that are in the public interest, wouldn’t that imply that Congress absolutely should not be trusted with the power to determine what speech/spending is or is not acceptable?

    1. Once we get money out of politics by banning corporate speech, the right people will be elected and Congress will be trustworthy again.

      /progbelief

    2. It always comes back to the voters. Either there is electoral fraud going on, or else the politicians getting elected and the issues getting pushed are the ones the voters want. And if the former is the case, then regulating political speech is only going to make things worse.

    3. And that assumes that there is any such thing as a “corrupting influence”. You know what a corrupting influence is? For the most part it is someone the person using the term doesn’t like having their views heard. That is really all there is to it. So fucking what if Dow Chemical can spend millions on an election campaign. The interests of Dow Chemical are no more or less necessarily corrupt than any other entity or person’s interest.

      1. And the anti-Citizens-United minions don’t mind the “corrupting influence” of powerful politicians stumping for candidates.

        1. Or the New York Times or CNN. If Dow Chemical can’t campaign for a candidate, why the hell should the New York Times be able to do so?

          1. “But the First Amendment guarantees freedom of the Press, which is us!”

            “You know that “Press” meant the printing press, meaning anyone who could write or print a broadsheet was also guaranteed the same protection, right?”

            “We’re living constitutionalists, so “Press” just means us.”

            1. So we will need to have the government keep a registry of who is really the press and who is just some corporate front pretending to be the press. I mean what could possibly go wrong with a government licensing program for the media?

              1. Hey, it works for guns, so why not speech? We’ll only outlaw assault blogs.

                1. Does anyone really need more than ten blogs?

          2. Or unions.

            Remember, the problem with “too large” amounts of political speech – oops, I mean spending – has nothing to with any other issue than CORPORATIONS!

  8. Whenever somebody bashes Citizens United, I always ask them “should the government have the power to ban political books and films?” Because that’s exactly what the case was about and what the Solicitor General argued in front of the Court.

    1. ^^THIS^^

      The case was about banning a movie. I am always amazed at how few people know the facts of the case and how dumbfounded they are when confronted with the facts. Yet, they never give in and insist money is bad or something.

    2. I’ve had a co-worker answer your question in the affirmative, if the book or movie “is full of lies”, like he believes that movie about Benghazi to be.

      1. It is appalling that someone could be so stupid that they don’t understand that you can’t just ban shit you think are lies.

      2. I’ve had the same response. And not because it’s full of lies. It’s because people shouldn’t be able to corrupt the political process with “incorrect” opinions.

        It has taken me a lifetime to understand that an astoundingly large percentage of people think like this or that restricting freedom is no concern of theirs as long as it won’t affect them. Very few people are even close to libertarian in their thinking.

      3. You can point out to him that that’s point number 23 of the NSDAP program:

        We demand legal opposition to known lies and their promulgation through the press.

        It comes after penalizing profiteering and speculation, free public education, free health care, and government retirement plans.

  9. Did the actual Citizen’s United decision opine on anonymity of individuals behind such spending? That’s the one restriction that I would find acceptable since it is obvious that the sole purpose of public anonymity is to foster private corruption. I’ve just assumed that the post-Citizens environment has deliberately avoided that particular issue because incumbents are already corrupt and anonymity helps keep it that way and it can now be blamed on ‘Citizens’. But is that correct?

    1. “The one restriction that I would find acceptable is gun registration, since it is obvious that the sole purpose of anonymous sales and ownership of firearms is to foster criminal activity”

      1. Obvious? To whom? And define criminal in a way that includes rights and victims, why dontcha?

    2. Did you miss the whole Mozilla FireFox CEO firing? There are real life non-political consequences if people can tie your support to certain subjects.

      1. That is why I now use Opera. If the situation had instead been – the CEO made the contribution using corporate funds (ie my money if I’m a shareholder) instead of personal funds, then I absolutely want to know that such theft has occurred and not have that hidden in the dark because the CEO wants to cover his tracks.

        Either way – yes there are often gonna be consequences to speech.

        1. CU was a political corporation. The concern would be attacks on private individuals donating to such corporations.

          1. Yeah. But the reality is that ‘electioneering communications’ (which is in practical modern terms defined as funding/buying mass media ads in close proximity to the election to decide that issue) is already a minefield of government quid pro quo’s (lowest unit rate, reasonable access to purchase, equal opportunities to purchase) imposed on entities (media companies) which aren’t paying anything for use of a government-granted monopoly (airwave spectrum and/or cable exclusiveness agreements).

            I have no problem at all with going after the quid pro quos or the grant of monopoly. Of course Reason never mentions any of that cronyist crap. Nor does the commentariat here. But given that that IS the reality, defense of ‘anonymity’ in this is nothing more than ‘defense of anonymous cronyism’.

            I can absolutely assure you that ‘anonymous cronyism’ is not some first step towards either a classical liberal ‘nightwatchman’/restrained state or a delusional anarcho whatever. It can be a first step towards Randian plutocracy – but that particular vision of statism is not very compelling to those outside ‘libertarians’ who prefer that form of statism.

    3. Did the actual Citizen’s United decision opine on anonymity of individuals behind such spending? That’s the one restriction that I would find acceptable since it is obvious that the sole purpose of public anonymity is to foster private corruption.

      Or maybe donors are afraid of being fired from their jobs or getting kicked out of certain social circles. Hell, maybe they’re afraid of getting hate mail or even being stalked for contributing to the wrong candidate.

      1. Or maybe donors are afraid of being fired from their jobs or getting kicked out of certain social circles. Hell, maybe they’re afraid of getting hate mail or even being stalked for contributing to the wrong candidate.

        Maybe they could start a Kickstarter campaign and go on a lecture tour?

    4. There are other reasons to want anonymity. Most obviously would be the desire to not make oneself a target for intimidation campaigns or government persecution. See https://en.wikipedia.org/wiki/NAACP_v._Alabama and http://www.wsj.com/articles/SB…..604524916.

      1. ^^^ this one. Always point this one out to people who don’t trust anonymity.

        1. Then ask them why they are on the KKK’s side of this issue. If you want to be a dick.

          1. Is there ever a wrong time to be a dick to facebook morons?

    5. IIRC, CU upheld certain disclosure requirements, but it’s been almost six years since I read the decision, so I don’t recall the specifics.

      1. Thanks. Yeah I just looked at it again and it upheld disclosure of electioneering communications (which it defines) by 8-1.

        So it IS incumbents/cronies who are keeping it in the dark – defended by the usual useful idiots commentariat here

        1. You seem really butthurt.

    6. it is obvious that the sole purpose of public anonymity is to foster private corruption.

      Says a guy commenting under a pseudonym.

      1. Elections in honest times were not secret. Now they are cabals of secret bands of robbers and murderers with a different kind of mask.

        1. Elections in honest times were not secret.

          You’re deluding yourself if you think that elections were ever honest. Even in the smallest elections (HOA, university faculty, you name it), there is massive horse trading.

          The real error is to assume that elections are an essential feature of democracy; the ancient Greeks considered elections to be intrinsically corrupt and instead selected leaders by sortition.

  10. describing Bush based on his debate performances as what you’d get if Lisa Simpson grew up to be a Republican

    Take that back right now!

    1. That goes way beyond a microaggression! It’s almost a milliaggression!

  11. Corporations or unions or any other collective of people should not be considered A PERSON.

    I don’t even believe that Corporations should have the capability of lobbying congress. On top of that, any stooge that shows up and claims he’s not in a corporations’ pockets and is sincere should undergo deep financial forensics.

    That said, I also don’t feel that corporations should pay any taxes either or require any special protections under the law.

    No corporation should be endorsing or making commercials or advertisements for any politicians.

    At least IMHO.

    1. So the government should be able to censor the New York Times op-ed page or Random House Publishing?

    2. Corporations or unions or any other collective of people should not be considered A PERSON.

      Corporate personhood means that you can sue the corporation and go after its assets. Good luck proving that the CEO was personally liable for the $15/hr truck driver running over your cat.

      1. Nuh uh.

        Corporations are just government fictions created to screw the little guy!

    3. Corporations or unions or any other collective of people should not be considered A PERSON.

      So, nobody should be able to contract with or sue a corporation, union, or other collective of people?

    4. Why shouldn’t they endorse or make commercials or adverts?

      Also, how many companies are out there trying to actively piss off half the people that buy their products by endorsing one guy or another?

    5. Corporations don’t do any of those things. A corporation is a legal fiction. People, who have collectively organized themselves and their resources into corporations.

      Think of this this way. You have a right to spend money on a political ad on TV. So does your daddy. But if you and your daddy join together your resources you all of a sudden lose that right? That makes no sense.

    6. Fuck you. We have the right to peacably assemble, into corporations if we wish, and engage in political speech.

      Take your opinion and go to hell.

    7. Under your view of corporations they wouldn’t exist. The ability to function as a legal person (own property, enter into contracts and agreement, sue and get sued) is the reason they exist.

      1. Be sentenced to hang by the neck until dead, to be imprisoned and make restitution by hard labor, to wear electronic come-alongs and chains, to live in rape cages… Suuuuure corporations are people, and the Apaches are the Lost Tribes of Israel.

    8. Corporations or unions or any other collective of people should not be considered A PERSON.

      They aren’t considered “a person”. What they are considered is “a legal person”; that is, they inherit just those rights from their members that the members can exercise collectively. That’s why corporations inherit the right to free speech, but they don’t inherit the right to marry.

      No corporation should be endorsing or making commercials or advertisements for any politicians.

      So, political parties shouldn’t be able to advertise? Newspapers shouldn’t be able to write editorials? And if you and a couple of friends want to hire a writer to create a YouTube video clip for you that makes a political statement, anybody who doesn’t like the clip should be able to sue you into oblivion?

      YHO is moronic.

  12. Here is just another instance of the left being opposed to basic civil rights. SHAME ON THEM!

    1. Look at the national socialist collectivist!

  13. If money alone is enough to win an election, then democracy is a fallacy because that would mean that the electorate is simply too simple-minded to make reasoned decisions.

  14. Doesn’t Jeb pretty much prove that money doesn’t buy anything? He’s got all that advertising money and yet no one likes him.

    1. It’s more like nobody likes the Hitler or Bush bloodlines and doctrines, for pretty much the same reasons. I doubt it’s personal.

  15. So this article is arguing that Citizens United was a correct decision because spending lots of money on political speech doesn’t do any good? Why is this in Reason?

  16. I wish supporters of Citizens United would stop arguing that money = speech. Of course it isn’t, and arguing that it is confuses the real issue. Money is the vehicle which enables speech. It’s like banning everyone from using a microphone. Or banning everyone from using all forms of media and then saying “Hey, we’re not banning speech. We’re just banning the use of newspapers, radio, TV, movies, the Internet, public spaces, your front lawn….”

    1. Look up bribery, trafficking in influence and pull-peddling. Every election is an advance auction for stolen property.

  17. Few critics of Citizens United actually know what was at issue in the case, judging by their criticisms. Corporate personhood and limits on campaign contributions weren’t, but those tend to be the buzzwords that get set off in discussions about the case.

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  19. No matter what is going on now, the Citizens United decision was and is an insult to the American voter. Only a human who is a citizen of the United States and is 18 or older can walk into a voting booth and cast a vote. No organization can, they’re virtual entities, whether a corporation, union, PAC, etc etc.

    Only individual citizens, 18 or older, should be allowed to contribute money or time to a political campaign, and only up to a maximum overall amount per year.

    The fact that the resources from vitual organizations are currently not getting the results they had hoped to pay for is irrelevant.

    1. You’re right that the results of spending shouldn’t matter in this issue. The author is all wet on that. But you might want to check on what is the issue. Citizens United has nothing to do with campaign contributions.

      1. It’s no use trying to argue that point to people.

    2. They sure as hell make certain some honest foreigner can’t buy politicians here.

    3. Only individual citizens, 18 or older, should be allowed to contribute money or time to a political campaign, and only up to a maximum overall amount per year. […] The fact that the resources from vitual organizations are currently not getting the results they had hoped to pay for is irrelevant.

      You are right that it is irrelevant, in the sense, that as a matter of principle, of course in a free society, people should be able to pool their resources, form organizations, and engage in political activities through those organizations. That is, you are clearly wrong on principle.

      Statists and totalitarians like you are never going to agree with that principle. But people like you also give utilitarian justifications for your hare-brained restrictions on liberty, and we can show those to be wrong by looking at the real world consequences of policies.

  20. As a general principle, I don’t take seriously anything said by someone who believes “corporations are not people” with speech rights unless they also believe unions are not people with speech rights (or, vice versa for union-busting conservatives).

    I haven’t had to take any Republican or Democrat seriously on Citizens United yet.

    Generally, I think that there should be no limit on campaign contributions or election spending from anyone to anyone for any reason. The only debatable part of campaign finance should be what the right balance is between anonymity/privacy and openness/transparency. If all laws on elections were removed except candidate donor reporting laws, but the FEC required all campaigns and PACs to list *every* donor, there’s an invasion of privacy argument, but I actually think I could live with it in exchange for losing the bureaucracy.

    1. FDR called them Artificial People in his “bank holiday” proclamation, with fines and imprisonment for you and I owning gold, but only fines for violations by “artificial people.” I’d pass the hat to hire some blade runners…

  21. The secret ballot makes every election more likely a fraud than not, since the intrenched party oligopsony is committed to the notion that being numerous makes sending men with guns to rob us. The Senile Court decision was clearly bought so more looter votes could be bought wholesale. The Nixon amendments to the IRS Code literally subsidizing elections with tax revenue since the day the Libertarian Party was formed are more of the same.

    If there were no Marxist income tax, or if corporate returns were in the public domain, and votes were verifiable by the people who cast them, the Supreme Court racketeering would make little difference. Is there a way to sue the Justices for Treason?

  22. Why should corporations not be allowed to make political speech?

    So, if a ballot initiative in California would put control of pricing for health insurance in the hands of an appointed commission and out of control of the insurers and providers, they can’t oppose that?

    Its crazy.

    1. Corporations can’t walk into a voting booth. Only citizen voters do. The only political speech and campaign contributions should come from individuals with a right to vote, not anyone else or any virtual entity like a corporation or union. The latter are NOT part of the body sovereign, the People.

      1. not anyone else or any virtual entity like a corporation or union. The latter are NOT part of the body sovereign, the People

        Yes, in the same sense that a forest isn’t part of a tree, or an orchestra isn’t part of a musician. So what?

        What you are actually saying is that the only political organizations that should exist in our nation are political parties. That’s roughly the situation that existed in the communist countries. It is utterly incompatible because people are completely powerless before the political might of parties and incumbents. You’re advocating totalitarianism.

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  25. How can anybody believe that politicians will create “level playing fields” in various industries when they won’t support a level playing field in their own “industry” of electoral politics?

  26. It’s really not that complicated: media corporations and incumbent politicians want to limit campaign spending in order to increase their own power.

    See how far you’d get if you proposed legally prohibiting newspapers and TV stations for opining or reporting on presidential elections. But for some reason, if you are a media magnate or journalist, you are supposed to be exempt from all these restrictions.

    (If the Koch brothers were really smart, they’d buy up some newspapers, like Bezos did.)

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