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.

Timothy Snyder Speaks, ep. 3: What is Oligarchy?

What does oligarchy mean? In the third episode of “Timothy Snyder Speaks,” historian and author Timothy Snyder explores the meaning of oligarchy, where it came from, how it endangers us — and how it connects the United States and Russia.

Celsius 41.11: Citizens United Documentary

Manohla Dargis of The New York Times compared Celsius 41.11 unfavorably to FahrenHYPE 9/11, another documentary film aimed at rebutting the arguments made by Michael Moore. While Dargis felt that the purpose of FahrenHYPE 9/11 was the detailed rebutting of the arguments put forward by Moore’s film, she felt that the purpose of Celsius 41.11 was to “make you afraid — very, very afraid”. She stated that Celsius 41.11 “presents a vision of the world verging on the apocalyptic“. Dargis concluded “finally [the film is] interesting only because it represents another unconvincing effort on the part of conservatives to mount a viable critique of Mr. Moore.”[6]

Criticisms of the production[edit]

The Boston Globe and the New York Times both questioned the reliability of some of the individuals interviewed. The Globe called the experts “occasionally dubious” saying that they “offer[ed] drive-by disses and plain untruths“.[21] Manohla Dargis of the New York Timeswas particularly critical of the film for not detailing the extent of Mansoor Ijaz‘s investments in the Middle East or “just how intimately familiar he was with the nonsense of the Clinton White House”.[6] Both publications, however, spoke well of the contributions of Fred Thompson with the New York Times calling him “thoughtful”[6] and the Globe adding that “with his level head and reflective words, [he] makes partisanship seem dignified.”[21]

Several critics felt that insufficient time had been spent on the film. Maitland McDonagh of TV Guide said that it “bears all the hallmarks of having been thrown together in a heated rush”,[22] a criticism echoed by Robert Koehler of Variety who called the editing “choppy”.[7]Wesley Morris of the Boston Globe described the film as “a seemingly last-minute series of talking heads and montages”.[21] A number of critics compared the style of the film to that of a PowerPoint presentation.[6][8][21][23]

.[6][8][21][23]

David Bossie: Wikipedia

David Norman Bossie (born November 1, 1965)[1][2] is an American political activist. Since 2000, he has been president and chairman of conservative advocacy group Citizens United and in 2016, Bossie was the deputy campaign manager to the Donald Trump presidential campaign.[3]

In May 2019, Bossie was accused by the Internal Revenue Service of defrauding political donors by funneling their donations to himself through consultants and book sales. President Trump has distanced himself from Bossie and demanded a thorough investigation.[4]

 

.. By May 1998, Burton came under intense partisan pressure; even fellow Republicans complained that committee staff had published redacted tapes and transcripts of former United States Associate Attorney General Webster Hubbell‘s prison telephone calls omitting some exculpatory passages. Speaker of the House Newt Gingrich pressed Burton to seek Bossie’s resignation.[8] Shortly thereafter, Burton accepted Bossie’s resignation.[9]

.. In June 2018, Bossie, a regular guest on Fox News programs, said that African-American co-guest Joel Payne was “out of his cotton-picking mind.” He later apologized.[15] Fox News suspended him for two weeks, calling the remarks “deeply offensive and wholly inappropriate.”[16]

 

.. At the Tea Party Convention, Bossie debuted the documentary Generation Zero, focusing on the 2008 financial crisis and its basis in the selfishness of the Baby Boomer generation. Said documentary, produced by Bossie for Citizens United Productions, had been written and directed by Steve Bannon.

 

.. He also was ranked number two in Politico‘s top 50 most influential people in American politics in 2015, tied with Charlie Spies.[18]

It’s time for liberals to get over Citizens United

Repealing the controversial decision is a pipe dream. And there are more promising avenues for campaign-finance reform.

From the moment the 2010 Supreme Court ruling Citizens United v. FEC came down, it scandalized liberals. The decision heralded the “hostile corporate takeover of our democratic process,” Rep. Rosa DeLauro (D-CT) thundered at the time.

In 2017, a commissioner of the Federal Election Commission resigned, claiming “since the Supreme Court’s Citizens United decision, our political campaigns have been awash in unlimited, often dark money.”* This was the animating sentiment of Bernie Sanders’s 2016 campaign for president; he even went so far as to claim that billionaires are simply “buying elections.”

This idea has given rise to a new liberal battle cry: Repeal Citizens United! Unfortunately, that tactic is naive and misguided, and relies on a misunderstanding of the law and politics surrounding the case. As we approach the 2018 congressional elections — and beyond that, the crucial presidential election of 2020 — it is more vital than ever to have a clear view of where this ruling fits into the mosaic of campaign finance law.

Such understanding will, in turn, shine light on what can be done to make the election process fairer and make politicians more responsive to all their constituents, not just the big spenders.

Some cities and states are already experimenting with programs that strengthen the voices of ordinary voters. Building on such efforts is likely to have far greater effects than continuing to demonize Citizens, whose logic is defensible on First Amendment grounds.

Most widespread in liberal circles is the idea that Citizens opened the floodgates to massive amounts of corporate spending in politics. But as many legal scholars have argued, the floodgates were already open. Citizens is not responsible for the massive amounts of money showered on favored candidates. Nor is it responsible for the rise of so-called dark money in politics.

Citizens didn’t upend our campaign finance system. It was a logical next step, given past court decisions.

Let’s put the hated decision into context. The inundation of elections with private cash is not the result of Citizens but rather was facilitated by the 1976 decision Buckley v. Valeo. That case established the legal framework sanctioning billions of dollars of independent private campaign spending. In it, the Court ruled that limits on campaign donations — direct donations to candidates — are constitutional but said it was unconstitutional to limit non-donation expenditures, such as independently funded advertisements.

Such independent spending — which cannot be coordinated with candidates, according to the Court — was protected under the First Amendment as not just speech but political speech. The idea is that money is a necessary instrument for supporting a political candidate, whether it’s paying for yard signs or taking out an ad in the newspaper.

Not unreasonably, the Court ruled that limitations on independent expenditures would constitute limitations on one’s ability to support a candidate through any number of media. Placing a dollar limit on such expenditures would arbitrarily prevent certain kinds of campaign support simply by the fact of how expensive they are.

Our inability to trace campaign donations to their source — the dark money issue — is the result of the lack of federal regulations to make disclosure mandatory. And such regulations are legal; the Court said as much in Citizens, with eight of nine justices agreeing on that point! The only thing standing in the way of transparency is congressional stonewalling. In 2010, Republican senators defeated a disclosure law 59 to 39, which would have made it more difficult for donors to use legal loopholes to hide their identities.

Citizens simply has not had the seismic legal impact that many think. Since Buckley protected money as speech, the only question was whether corporations were legitimate speakers. It may surprise some to hear, but the Court had already answered this question in 1978. In First National Bank of Boston v. Bellotti, the Supreme Court recognized a corporate right to free speech, concluding that the value of speech in the course of political debate does not depend on the identity of the speaker. Citizens simply followed the precedent of these two cases.

So when liberals intone that “corporations aren’t people,” thinking they are making a knock-down argument against Citizens, they miss the point. Citizens did not make corporations persons. And corporations do not need to be persons to receive First Amendment protections. Citizens upheld the liberty, provided by Bellotti, of corporations to speak, and they speak under the rules provided by Buckley.

The details were debated by expert lawyer Floyd Abrams and First Amendment scholar Burt Neuborne not long after Citizens came down. Abrams noted that even the liberal Justice John Paul Stevens, dissenting, recognized that the Court has “long since held that Corporations are covered by the First Amendment.”

Neuborne, in response, argued that corporations lack dignity and a conscience, which he thinks underpin the human right to free speech. But Justice Kennedy, writing for the slim five-justice majority, cited the long history of First Amendment protections for corporations. The Court had sided heavily with the Abrams view.

The Court seems inclined to limit the definition of “corruption” to explicit bribery

The only remaining question was whether there could be a justification for the government’s curtailing of that speech. Abridging political speech falls under the strictest category of judicial scrutiny; any law that does so must be justified by a “compelling state interest.”

One such objective, some suppose, is stopping corruption, a clear threat to the integrity of Congress. And indeed, in Randall v. Sorrell (2006), the Court reaffirmed that combating “corruption” rises to the level of a compelling state interest. But in Citizens, Justice Kennedy said the only kind of corruption that would count in this context is the most direct kind: “quid pro quo” corruption, which covers only vote-buying bribery.

No such vote buying was at issue in Citizens, since the controversy centered on the release of a privately funded campaign video during an advertising “blackout” period. Such off-limits periods, established by the McCain-Feingold legislation, paid insufficient heed to the Court’s precedents on money as speech and the high bar for restricting political speech.

In response to Kennedy’s narrow conception of corruption, Harvard Law professor and onetime presidential contender Lawrence Lessig has advocated for a broader idea of corruption. In his book Republic, Lost, Lessig spells out his notion of “dependence corruption,” whereby Congress is unduly responsive to big donors because they are dependent on them for campaign money.

He takes pains to argue on “originalist” grounds, hoping to appeal to the conservative majority of the Court, who attempt to cleave closely to the meaning of words as they are found in documents at the time of the Constitution’s drafting. Alas, his arguments have largely fallen on deaf judicial ears.

Where does that leave us?

We are almost certainly stuck with Citizens, not to mention Buckley and Bellotti. The major hope of many concerned lawyers and academics in the runup to the 2016 election has been dashed: the hope of filling the late Justice Antonin Scalia’s seat with a more liberal justice who might help reverse the decision. Instead, reformers got Neil Gorsuch.

So even if there were a stronger legal argument to be made against Citizens, that argument won’t attract enough votes in the Supreme Court. Desperation has led some, like Sanders, to push for a constitutional amendment limiting corporate campaign spending. But beyond being a pipe dream, given the institutional challenges, this tactic fails to take seriously the intricate First Amendment questions at issue.

The upshot of the Sanders campaign is its demonstration of the strength of a candidacy funded by small donations. As a candidate, Sanders rejected Super PAC funding in favor of donations averaging well under $100. Since Super PACs are the primary means individuals and corporations funnel their money to campaigns, it is historically noteworthy that a candidate without such support was capable of seriously contending for the presidency.

The lessons to draw from Sanders’s campaign is not that the system is healthy. Instead, we should conclude that the medicine to cure it may take the form of enabling citizens to make more Bernie-size donations. As of late, there has been an uptick in under-$200 donations to congressional races. In order to make such donations a staple in our democratic process, they should be supported by legislation.

Such a program has been introduced in Seattle, which gives away “democracy vouchers,”which could serve as a national model.

The basic idea is simple: Every eligible voter in Seattle receives $100 in vouchers, which they can freely donate to campaigns in the local city elections. This means every voter can participate in the pre-election process by using their money to “speak up” for candidates they endorse, and it enables lesser-known candidates to find financial support without bending the knee before big money special interests.

Theoretically, this ensures that every citizen has a baseline level of equal participation in the political process. It expands our understanding of political equality beyond “one person, one vote” to a wider notion of equal opportunity for electoral participation.

The local focus is a crucial first step to reshaping public participation in campaigns. As ACLU national legal director David Cole has argued, the most likely path to substantial federal campaign finance reform is by winning small victories in cities and states. Fostering state- and local-level initiatives accomplishes several things.

First, it draws more citizens into the debate over the proper role of money in politics — an essential step toward a sustained national conversation.

Second, it allows for political and legal experimentation. Because the Supreme Court is unpredictable, especially given the uncertainty of Justice Kennedy’s swing vote, attempting several strategies at once for public funding increases the chances that a constitutionally passable version is found.

More experiments also mean more models that can be used as contrasts to the federal system, making the weaknesses of the federal system all the more clear.

Third, such an approach will spark important legal work, which is far from a purely academic matter. By pursuing ballot initiatives and enacting local laws that address money in politics, we will invite legal challenges by entrenched, moneyed interests. This forces judges to issue ever more opinions on what is constitutional, justifying themselves along the way.

Higher courts will receive appeals and further scrutinize this reasoning. This, in turn, will attract legal academics like moths to a flame, whose work will be cited by advocates and courts.

All of this will arm the public with constitutional arguments to defend the integrity of our democracy.

There is no guarantee that all of this will be enough to counterbalance the power of big money in elections. But we can hope that bottom-up political activism will light a fire underneath the complacent rump of Congress. Increased national dialogue, successful local and state initiatives, and a proliferation of academic criticism of current law and policy all generate real political pressure.

Signs of hope

Disclosure laws are not out of reach in the coming years, and increased participation in local elections, subsidized by voucher systems, may usher in increased voter turnout for national elections. Higher turnout has been shown to heavily favor one of the two major political parties. Hint: It’s not the Republicans.

Liberals should take note of the recent special election in Pennsylvania’s 18th District. Outside donations for the Republican candidate, Rick Saccone, were more than five times larger than for the Democrat, Conor Lamb. Yet Lamb pulled off the upset, showing money isn’t everything. He drew strength from a well-mobilized, engaged electorate.

Such vigor can be stimulated in elections across the country — particularly if we provide concrete, monetary means for voters to participate in the selection of their representatives.

Rather than continuing to rail against Citizens United, reformers should pursue strategies that increase democratic participation and encourage voter turnout.

 

Q&A: David Bossie

David Bossie, President of Citizens United, speaks about “Hillary: The Movie,” a documentary he produced that was the subject of a recent U.S. Supreme Court decision. Program from Sunday, February 14, 2010.
31 min: Didn’t do Willie Horton ad
40 min: $2.5 million on production and legal fees
41:20: The White House Spin Cycle that would attack anyone
42:35: George Bush condemned Bosse’s gutter politics
57:54: Would you change any of your tactics that you used in the past?   No, politics is a tough business.  .. I call this a full contact sport.  It’s the Old Godfather.. It’s not personal. It’s business.