Conservative and Libertarians on Citizens United After 5 Years

The White House and protesters yesterday went after Citizens United on its fifth anniversary in mostly fact free attacks. As Curt Levey of the Committee for Justice writes in Apocalypse Imagined:

The most memorable moment of [all of President Obama’s] the State of the Union address was the reaction of Justice Samuel Alito to inaccuracies in the President’s remarks about a recent Supreme Court decision.  President Obama is hardly alone in mischaracterizing the January 21 ruling in Citizens United, which struck down as a violation of First Amendment freedom of expression, a federal ban on campaign ads and related communications paid for by corporations and labor unions.  Never has a Supreme Court decision been misconstrued by so many people in so many ways.  Before Congress “corrects” the Court’s ruling, as the President urged, it is crucial that a series of misconceptions about the decision be cleared up. .  . .

Critics’ apocalyptic descriptions of Citizens United – a return “to the robber-baron era of the 19th century” said the New York Times – have focused almost entirely on giant, for-profit corporations, with some mention of labor unions.  Americans are left mostly unaware that the Court’s ruling applies equally to charities, advocacy groups, trade associations, and other non-profit corporations, not to mention small businesses.  In fact, because non-profits are cause-oriented and typically more willing to openly jump into the political fray, they will be most impacted by the decision.

Corporations will have to take explicit ownership of each and every campaign ad they are behind.  Contrary to the widespread impression that corporate dollars will be funneled into candidates’ campaign chests, the total ban on corporate contributions to candidates, political parties, and political action committees remains in place.  Any coordination between corporations and campaigns remains unlawful as well.  And even completely independent corporate expenditures must be publicly disclosed.

The continuing ban on corporate contributions is just one reason why the ubiquitous descriptions of Citizens United as a sea change are greatly exaggerated.  You would never know that billionaires have always been permitted to spend unlimited amounts on independent campaign ads, or that corporate campaign ads masquerading as issue ads – for example, “call candidate Smith and tell him to end his support for killing baby seals” – were already protected by the First Amendment.  In fact, a majority of states already permit unlimited corporate spending for explicit campaign ads in state races.  Seven even allow unlimited corporate contributions to candidates.  Yet there’s no evidence of greater corruption in those states.

Cato’s Illya Shapiro breaks down why President Obama should turn in his law professor card for his attacks on Citizens United:

These laments echo President Obama’s famous statement during his 2010 State of the Union Address: “The Supreme Court reversed a century of law that I believe will open the floodgates of special interests – including foreign corporations – to spend without limit in our elections.”

In that one sentence, the former law professor made four errors that are all too common.

First, Citizens United didn’t reverse a century of law. The president was referring to the Tillman Act of 1907, which banned corporate donations to campaigns. Such donations are still banned. Instead, the decision overturned a 1990 precedent that upheld a ban on independent spending by corporations. That 1990 ruling was the only time the court allowed a restriction on political speech for a reason other than the need to prevent corruption. . . .

Second, the “floodgates” point depends on how you define those terms. In modern times, nearly every election cycle has seen an increase in political spending, but there’s no indication that there’s a significant change in corporate spending. And the rules affecting independent spending by wealthy individuals, who are spending more, haven’t changed at all.

Third, Citizens United said nothing about restrictions on foreign spending in our political campaigns. In 2012, the Supreme Court summarily upheld just such restrictions.

David Keating at the Center for Competitive Politics sums it up this way.

"Five years ago today, the Supreme Court greatly expanded the ability of individuals through corporations and unions to participate in our democratic process." said Center for Competitive Politics President David Keating. "We should all celebrate the fact that the First Amendment protects our right to speak out about politics. The more political speech that is allowed in our democracy, the stronger our democracy becomes, because citizens learn more information about the candidates which in turn allows them to make a more informed decision about who to vote for -- regardless of who spends more."

In conclusion as Heritage Scholar John Malcolm states in US News:

While Obama and others on the left blame Citizens United for allowing corporations to politically overwhelm small, independent voices, Malcolm waved off those concerns: “The blogosphere is full of concerned citizens … nobody is being silenced. The little guy with a computer has a lot more power to get his message out” than ever before.

Bottom line, he says: Citizens United may have rearranged the trees, but it didn’t alter the landscape. And “the way to get at the truth is more speech, not less speech.”