D. Dowd Muska


Celebrating the Day Democracy Died

January 08, 2015

NPR will tut-tut. MSNBC could melt down. Bernie Sanders, Vermont’s socialist senator, might not make it through the day.

January 21 marks the fifth anniversary of the Supreme Court’s ruling in Citizens United v. Federal Election Commission. To campaign-finance scolds, the decision is nothing less than a monstrous repudiation of core American values. Citizens United, two “progressive” hypesters wailed, gave “carte blanche to the world’s largest corporations to spend unlimited sums of money to support or oppose candidates for elected office,” thus intensifying “Big Business domination of Washington.”

Back on this planet, what the ruling actually did was lift federally imposed limitations on “electioneering communications” by unions, nonprofit organizations, and businesses. Citizens United permitted the entities to spend their own money to endorse or oppose candidates at any time. As National Review’s Anthony Dick put it, by defending the restrictions, the national government claimed that “it had the power to outlaw books and movies … if they included even a single line addressing an election or a political issue. Such blatant censorship of core political speech falls well within the text and original meaning of the First Amendment, which supported an open marketplace of ideas.”

Anthony Kennedy, the moderate justice who penned the ruling, agreed: “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful.”

Did Citizens United fundamentally change elections? It’s best to examine the 2012 matchup, when the presidency, the House of Representatives, and a third of the Senate were up for grabs. “Unlimited sums of money” weren’t spent --- $7 billion was. Sounds massive, but let’s put the figure in perspective. Annually, more is spent on Halloween candy, costumes, and decorations. More is spent on pornography. More is spent on “professional lawn and landscape services.” Much more is spent on beer. Longtime observers of Big Government stand with writer Tom Bethell, who pondered why, given “how much of their money Congress disposes of every year,” Americans do not “spend a great deal more than they now do to gain control over the massive redistributions that take place in Washington.”

Speech controllers loathe money in politics, but what drives them to dementia is corporate money in politics. Using Naderite “logic,” since Citizens United handed crony capitalists a tool to control elections, 2012 should have been a very good year for the GOP -- the party generally considered cozier with business interests. It wasn’t. Barack Obama, a tax-hiking, free-trade-foot-dragging, union-coddling, cap-and-trader was reelected, defeating private-equity maestro Mitt Romney. And Republicans lost seats in the Senate.

Furthermore, the way election revenues were spent did not undergo a profound transmogrification. In 2012, just 26 percent of total expenditures were made by independent entities. In the first marquee faceoff of the Citizens United era, candidates and political parties continued to control the bulk of campaign spending. And “dark money” -- dollars spent by trade associations and lobbying organizations that are not required to disclose their donors -- represented a paltry 4.3 percent of all expenditures.

It’s a safe bet that nearly everything you’re read and heard about Citizens United is wrong. It did not create “Super PACs.” (That was a separate case, SpeechNow.org v. Federal Election Commission.) It did not, as the president blathered, “open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections.” (Non-Americans cannot lawfully make “a contribution or donation of money or other thing of value … in connection with a Federal, State or local election.”) And it was hardly, as Democracy 21’s Fred Wertheimer thundered, “a disaster for the American people.”

Bradley Smith’s take on the ruling is instructive. A law professor and former election regulator, he believes that critics have it backwards. Large corporations will always be players in politics, he noted, via direct giving, employee donations, or lobbying. Citizens United, Smith averred, empowered “small and midsize corporations -- and every incorporated mom-and-pop falafel joint, local firefighters’ union, and environmental group -- to make its [sic] voice heard in campaigns without hiring an army of lawyers or asking the FEC how it may speak.”

A creepy compulsion to micromanage campaign finance blinds advocates for “good government” to the threats their measures pose to the First Amendment. Nothing, it appears, will make John McCain’s band of misguided reformers understand that more speech is beneficial to fair and competitive elections.

D. Dowd Muska (www.dowdmuska.com) writes about government, economics, and technology. Follow him on Twitter @dowdmuska.

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