A Decade Later, Citizens United Yields Election Benefits

An adage credited to Mark Twain holds that you should get the facts first, then distort them as you please.

This cynical advice comes to mind when reading the sprawling, controversial election bill called the For the People Act of 2021 — especially its entire section aimed at the Supreme Court’s much-maligned Citizens United v. FEC ruling, which struck down the ban on corporations making independent political communications more than a decade ago. I was chair of the FEC when this took place.

The bill, which passed the House of Representatives on a party-line vote and is now in the Senate, calls for a constitutional amendment to overturn Citizens United, contending that the opinion and its progeny “have empowered large corporations, extremely wealthy individuals, and special interests to dominate election spending, corrupt our politics, and degrade our democracy through tidal waves of unlimited and anonymous spending.” 

This criticism echoes the New York Times, which at the time of the ruling declared that Citizens United “has paved the way for corporations to use their vast treasuries to overwhelm elections” and “has distorted the political system to ensure that Republican candidates will be at an enormous advantage in future elections.”

But if we stick with the facts, we can see some major upsides to Citizens United.

Alarmist predictions that powerful businesses would buy elections have not materialized. For-profit corporations have largely avoided contributing to super PACs or making direct expenditures for fear of angering their consumers, employees, and lenders. So far, most companies have decided that directly intervening in elections is bad for business.

Also, little evidence suggests that Citizens United has led to a deluge of corruption. In fact, an Institute for Free Speech study shows that, while independent political spending has exponentially increased in the opinion’s wake, public corruption prosecutions brought by the Department of Justice have declined. Data suggesting that outside spending buys legislators’ votes is scant.

And judging by recent voter turnout rates, our democracy has grown stronger, not weaker, since Citizens United.  More than 66% of voters turned out in 2020, the best showing in a presidential election in 120 years. This followed 2018, which saw the highest midterm voter turnout rates in over a century. While many do not like heavy political spending on often-negative advertising, increased outside money has not diminished voter engagement but looks to be enhancing it by providing the electorate with helpful information about candidates and issues.

Nor has Citizens United delivered a political windfall for Republicans. Instead, outside spending — fueled by wealthy individual donors empowered by the decision tends to favor the party that does not control the White House: The GOP benefited from a surge in independent expenditures when Barack Obama was president, followed by a shift toward the Democrats after Donald Trump won in 2016.  According to numbers compiled by the Center for Responsive Politics, liberal outside groups outspent conservative ones, $1.6 billion to $1.3 billion, in the 2020 election cycle; and with respect to so-called “dark money” — the political spending financed by undisclosed donors — the Democrats enjoyed a more than 2-to-1 advantage. Few things motivate donors more than the tantalizing prospect of their side regaining power. So do not be surprised if Republicans regain the outside spending advantage in 2022.

Post-Citizens United, what especially stands out is how competitive our electoral politics have become, with power fluctuating between the parties. When the Supreme Court issued its decision in early 2010, the Democratic Party controlled the presidency and held large House and Senate majorities.  Since then, we have seen:

  • 2010 — Republicans recapture the House by netting 63 seats, while winning six Senate seats.   
  • 2012 — Democrats retain the White House.
  • 2014 — Republicans retake the Senate with the biggest net seat gain since 1980.
  • 2016 — Republicans win the presidency and obtain unified control of the White House and Congress for the first time since 2006.
  • 2018 — Democrats win 41 seats to take back the House.
  • 2020 — Democrats take back the White House, the Senate ends up tied 50-50, and Republicans narrow the Democrats’ House majority to a mere five seats.

One likely reason for this back-and-forth struggle is that outside spending helps offset the built-in advantages enjoyed by entrenched incumbents, whose broad name recognition and established fundraising networks typically allow them to outraise challengers by lopsided margins.  Independent expenditures in favor of challengers level the financial playing field and, combined with a donor motivation advantage for the out-of-power party, look like they have contributed significantly to a period of remarkable parity between the parties.

Though I believe Citizens United deserves a lot of credit for these outcomes, there is certainly room for debate regarding the ruling’s impact. Still, in the decision’s aftermath, rather than our government being sold to the highest bidder, we see robust election competition, engaged voters, and more even-handed political spending — all without increased corruption.

In the debate around Citizens United, we don’t need to play by Mark Twain’s rules. Facts alone are far more helpful than distortions.

Matthew Petersen is the former chairman of the Federal Election Commission and is a partner at Holtzman Vogel Baran Torchinsky & Josefiak PLLC.

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