JURIST Guest Columnist Paul Sherman of the Institute for Justice argues that the Citizens United decision was not as influential in this November's election as opponents of the ruling feared...
hould the government be allowed to ban peaceful political advocacy? Most Americans, upon hearing this question, would likely answer "no." However, ask those same Americans their opinion of the US Supreme Court's 2010 ruling in Citizens United v. FEC
holding that the government could not ban independent electoral spending by corporations or unions and a substantial percentage of them will enthusiastically support sweeping restrictions on peaceful political advocacy. Some will even support amending the Bill of Rights
for the first time in American history to reduce the scope of freedom protected under it. What explains this dissonance between widespread support for peaceful political advocacy and equally widespread hostility toward certain (mostly corporate) speakers?
Whatever it is, it is not evidence that corporate political spending is harmful. Before Citizens United was decided, the rule that it announced that corporations and unions may spend an unlimited amount on independent political advocacy was already the rule in a majority [PDF] of US states. However, proponents of strict regulations of campaign finance have never produced a shred of evidence that these states were any more corrupt or less well-governed than the minority of states that banned electoral spending by corporations and unions. To the contrary, a 2008 study by Governing magazine funded by the pro-"reform" Pew Charitable Trust found that the six best-governed states in the nation were all states that allowed unlimited corporate and union electoral spending. Indeed, the best-governed US state, Virginia, actually allows unlimited corporate and union contributions directly to political candidates. We see similar evidence internationally; Australia, for example, has fewer campaign-finance restrictions than any state in America, yet it remains a thriving western democracy with among the lowest levels of public-sector corruption in the world (lower, in fact, than the US).
Beyond being harmless, the reality of corporate money in elections is that there is not much of it compared to money from other sources. The torrents of corporate money predicted by the most hysterical members of the "reform" community simply have not materialized. Although corporations certainly spoke out in the 2012 election, the available evidence shows that their participation paled in comparison to the participation of wealthy individuals, who have always been allowed to spend unlimited amounts on independent political advocacy. While reformers like Ciara Torres-Spelliscy wring their hands over the "ton" of corporate money spent in 2012, the fact is that the combined amount of all corporate expenditures she cites including even the $36 million spent by the US Chamber of Commerce is less than the amount spent by one individual, casino magnate Sheldon Adelson.
The fact that corporate participation in elections has been modest in the wake of Citizens United should come as no surprise. There is no evidence that corporate spending had previously dominated elections in the 26 states where such spending had long been permitted, nor would we expect there to be. Corporations sell goods and services to people of all political persuasions, and it simply is not in their interest to risk alienating their customers. Target Corporation learned this lesson the hard way in 2010 when its contribution to a group that supported a conservative opponent of gay marriage resulted in a highly publicized backlash against the company.
Even if corporations did choose to throw caution (and good business sense) to the wind and become more active in electoral politics, the results of the 2012 election suggest that they would have, at most, a marginal impact. Despite the fact that Republican-leaning super PACs and nonprofits vastly outspent their Democratic counterparts, Democrats held on to the White House, expanded their majority in the Senate and narrowed the Republican majority in the House of Representatives. Again, this should come as no surprise. Although political spending may persuade voters at the margin, it cannot radically transform public opinion. Public opinion in America currently is closely divided between Republicans and Democrats, and last November's results reflect that division.
In short, none of the claims that the political advocacy "unleashed" by Citizens United would dramatically transform US elections hold up to scrutiny. However, if public opposition to Citizens United cannot be explained by evidence of that decision's actual effect on elections, what can explain it? Credit for that falls to the proponents of campaign finance restrictions who abetted by an extremely sympathetic mainstream media have spent nearly three years conducting a relentless and highly effective public-relations campaign designed to delegitimize the Supreme Court's decision in Citizens United.
Like any good PR campaign, the reformers' campaign has its buzzwords. For example, nonprofit groups organized under Section 501(c)(4) of the Internal Revenue Code, which have been allowed to spend freely on political advocacy for over a quarter century, have now been dubbed "dark-money groups." Even more effective, however, have been the campaign's two big slogans: "money is not speech" and "corporations are not people."
These slogans are undoubtedly catchy, but they are also highly misleading, as even some opponents of Citizens United are willing to admit. Law professor Geoffrey Stone, for example, has dismissed the "money is not speech" slogan by noting:
[N]ot a single justice of the US Supreme Court who has voted in any of the more than a dozen cases involving the constitutionality of campaign finance regulations, regardless of which way he or she came out in the case, has ever embraced the position that money is not speech. It is simply not a persuasive or even coherent way to frame the issue. If it were, then the government could make it a crime for any person to use money to buy a book.
The slogan "corporations are not people" is equally incoherent. Taken seriously it would mean that corporations should enjoy no constitutional rights, a position that is not held by a single member of the US Supreme Court (and with good reason it would empower the government, among other things, to censor corporate-owned newspapers, seize corporate property without paying just compensation and conduct warrantless searches of corporate offices). The fact is, corporations enjoy certain constitutional rights because people enjoy those rights, and they do not lose those rights simply because they choose to associate with one another using the corporate form.
Ultimately, once the evidence is weighed and the trite slogans are stripped away, we are left back where we started, with a simple question: Should the government be allowed to ban peaceful political advocacy? For all the controversy its decision has inspired, the Supreme Court in Citizens United did nothing more than confirm the commonsense intuition that the correct answer to that question is "no."
Paul Sherman is an attorney at the Institute for Justice. He joined the Institute in July 2007 and litigates cutting-edge constitutional cases protecting the First Amendment, economic liberty, property rights and other individual liberties in both federal and state courts. He served as co-counsel for the plaintiffs in SpeechNow.org v. FEC, a federal case the struck down limits on contributions to super PACs.
Suggested citation: Paul Sherman, The Question at the Heart of Citizens United, JURIST - Sidebar, Dec. 15 2012, http://jurist.org/sidebar/2012/12/paul-sherman-citizens-united.php
This article was prepared for publication by John Paul Regan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at email@example.com