Celebrate the Citizens United Decade

The ruling has empowered small-dollar donors and political outsiders, not corporations.

‘Last week,” President Obama declared a decade ago, “the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”

Mr. Obama was wrong in almost every respect about Citizens United v. Federal Election Commission, which the court decided on Jan. 21, 2010. Hysterical predictions about Citizens United—then-Rep. Ed Markey, among others, compared it to Dred Scott—haven’t held up.

Contrary to Mr. Obama’s assertion about a century of law, Citizens United overturned portions of McCain-Feingold, a campaign-finance law that wasn’t even 10 years old, and another law from 1947. Those laws prohibited unions and corporations, including nonprofits, from voicing support for or opposition to candidates for federal office.

Citizens United didn’t affect the longstanding ban on corporate contributions to candidates, and it didn’t legalize foreign political spending in the U.S. Most Russian online ads in 2016 would have been protected under the First Amendment even before Citizens United, because the ads didn’t urge a vote for or against a candidate.

Far from handing power to the 1%, Citizens United unleashed rapid political diversification. Since the ruling, the White House or Congress has changed parties in every federal election except 2012. Twenty eighteen saw the highest midterm voter turnout in a century. Small-dollar donors are more coveted than ever. Donald Trump raised more money from donors who gave less than $200 than any candidate in history.

Since Citizens United, party outsiders such as Mr. Trump and Bernie Sanders have risen to national prominence. And money hasn’t been able to buy elections as predicted. Sheldon Adelson donated record amounts to Republican super PACs in 2012 but failed to prevent strong Democratic victories. Democrats Tom Steyer and Michael Bloomberg came up empty after putting huge sums of money behind climate change and gun control.

Hillary Clinton outspent Mr. Trump 3 to 1 in 2016. Congressional leaders and big-time fundraisers such as Reps. Eric Cantor (R., Va.) and Joe Crowley (D., N.Y.) lost their seats to primary challengers who spent a fraction of what the incumbents did. Incumbent re-election rates in the House never dipped below 94% from 1996 to 2008, but did in 2010, 2012 and 2018.

Citizens United deserves a share of credit for all these trends. The decision made it easier to promote (or criticize) a candidate without help from party leaders or media elites.

Perhaps the worst prediction was that Citizens United would allow a corporate takeover of democracy. The New York Times accused the justices of having “paved the way for corporations to use their vast treasuries to overwhelm elections” and “thrust politics back to the robber-baron era of the 19th century.”

A decade later, most spending comes from the same place it always has: individuals who donate directly to candidates, up to legally limited amounts. Corporations contribute well under 10% of federal political spending, Their voice is not dominant—and voters have a right to hear it. Justice Anthony Kennedy and his colleagues didn’t hold that “money is speech” or “corporations are people.” The ruling was part of a healthy shift in favor of free speech in politics—a trend that began with 2007’s Wisconsin Right to Life v. FEC, and continued through 2014’s McCutcheon v. FEC.

The questions is whether the justices think their work is done. If they truly want to empower democracy, they should continue to look skeptically at regulation of campaign finance. Political speech, after all, is at the core of the First Amendment’s protection.

Mr. Smith served as chairman of the Federal Election Commission, 2001-05, and is chairman of the Institute for Free Speech.

Why Campaign Finance Reform Never Works

Shays-Meehan would limit spending in House races to $600,000. In 1996, every House incumbent who spent less than $500,000 won compared with only 3% of challengers who spent that little. However challengers who spent between $500,000 and $1 million won 40% of the time while challengers who spent more than $1 million won five of six races. The McCain-Feingold bill, which sets spending limits in Senate races, would yield similar results. In both 1994 and 1996, every challenger who spent less than its limits lost, but every incumbent who did so won.

This anecdotal evidence supports comprehensive statistical analysis: The key spending variable is not incumbent spending, or the ratio of incumbent to challenger spending, but the absolute level of challenger spending. Incumbents begin races with high name and issue recognition, so added spending doesn’t help them much. Challengers, however, need to build that recognition. Once a challenger has spent enough to achieve similar name and issue recognition, campaign spending limits kick in. Meanwhile the incumbent is just beginning to spend. In other words, just as a challenger starts to become competitive, campaign spending limits choke off political competition.

Bradley Smith (law professor): Wikipedia

Smith’s breakthrough came in 1996, with the publication of his article “Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform” in the Yale Law Journal.

In “Faulty Assumptions”, Smith laid out a case against campaign finance regulation, arguing that efforts to regulate money in politics had been based on a series of incorrect beliefs about the effects of money in politics, and that as a result reform efforts had failed to accomplish their objectives and had made many of the problems of money in politics worse.[2] “Faulty Assumptions,” and later articles by Smith, have been cited in numerous recent Supreme Court decisions striking down campaign finance laws on Constitutional grounds, including Citizens United v. Federal Election Commission.[3] In 2010 The New York Times called Smith the “intellectual powerhouse” behind the movement to deregulate campaign finance.[4] The importance of “Faulty Assumptions” lay in its blending of existing political science research with legal and constitutional theory. Before “Faulty Assumptions”, most legal scholarship on campaign finance had followed a narrative that assumed the corruptive and anti-egalitarian effects of large campaign contributions and spending, and had then focused on the creating a legal regime to control those effects and justify regulation against First Amendment claims recognized by the Supreme Court in Buckley v. Valeo. At the same time, these articles largely ignored a growing literature in political science based on empirical studies of campaign spending and regulatory regimes. Smith’s contribution was to bring these two arms of scholarship together, blending the growing body of empirical data to the constitutional and legal principles laid out elsewhere.[citation needed] The result was to challenge the very foundation of campaign finance reform in both politics and constitutional law. Smith’s analysis forced proponents of reform to rethink many basic assumptions, or at least to justify them against his critique.

.. Smith also wrote Unfree Speech: The Folly of Campaign Finance Reform, a book published by the Princeton University Press in 2001. By the time Unfree Speech was published, both Smith and his campaign finance scholarship had become something of a Rorschach test for attitudes about campaign finance. The book met with near universal praise among opponents of regulation, such as columnist George Will, who called it “the Year’s most important book on governance,”[6] and condemnation from supporters of regulation, with journalist Eliza Newlin Carney lambasting it as “facile and boggling.”[7] Scholars, including the British political scientist Michael Pinto-Duschinsky were more balanced and generally complimentary,[8] but by the time of publication Smith had been appointed to the Federal Election Commission and the book was largely reviewed as a political tract, rather than as the scholarly manuscript Smith presumably intended.[citation needed]

.. The Brennan Center for Justice, a harsh critic of Smith’s work, nevertheless recognized him as “the most sought after witness” to make the case for deregulation of campaign finance before congressional committees.[12]

.. Because of his contrarian, deregulatory views on campaign finance, there was a strong objection to his nomination from reform advocates.

The libertarian magazine Reason noted that virtually all reform advocates “agreed that he was the wrong person for the job”.[13] His nomination, however, received support from supporters of deregulation of campaign finance, such as the Cato Institute.[14]

.. After leaving the FEC, Smith returned to teaching at Capital University and founded a non-profit organization, the Center for Competitive Politics to promote deregulation of campaign finance.