Citizens United gives freedom of speech back to the people
This is part of the Reuters series on the Supreme Court’s Citizens United decision, handed down Jan. 21, 2010. After five years, is anything the same in U.S. elections? You can read other pieces in the series here.
Citizens United v. Federal Election Commission (2010) is one of the most misunderstood U.S. Supreme Court decisions of modern times. A routine, sensible ruling, Citizens United somehow became a lightning rod for demagogues, would-be censors and partisan hacks across the political spectrum.
So how has it worked? We’ve now had three election cycles under Citizens United, and none of the doomsday predictions have come true.
Let’s start with the idea that corporate spending would “swamp” U.S. elections. First, corporations are still prohibited from giving to candidates’ campaigns. In fact, for-profit corporation spending in elections — which existed in various forms even before Citizens United — remains approximately 2 percent to 5 percent of total campaign spending, according to data from the Federal Election Commission and nonprofits such as the Sunlight Foundation and Center for Responsive Politics. The number of for-profit corporations spending directly on campaigns can be counted on your fingers and toes, and most of those are closely held family businesses.
Much of the anti-Citizens United propaganda focuses on increases in “outside spending” since the decision. But there is nothing wrong with outside spending. Outside spending simply means spending not controlled by candidates and political parties — spending by the Humane Society, the National Association of Realtors, the Environmental Defense Fund, the U.S. Chamber of Commerce and similar groups. It is crucial for such citizen organizations to speak out about candidates. Political discussion should not be monopolized by politicians and political parties.
Even if you think outside spending is somehow bad — notice it is never quite explained why — it was just 13 percent of total political spending in 2014. This is hardly unprecedented. For example, in 2000, 10 years before Citizens United, outside spending was 17 percent of the total.
Though many people complain about political spending, Citizens United correctly holds that more political speech — more voices, more information — is a good thing.
Regardless, political spending has not exploded under Citizens United. In 2014, after adjusting for inflation, total political spending was just 1.5 percent higher than in 2006, the last midterm before Citizens United. By comparison, the increase in the two midterm election cycles from 1998 to 2006, which included the period in which the McCain-Feingold campaign finance restrictions were in place, was 42 percent greater than inflation.
It’s not merely that dire predictions about Citizens United have not come true. It is that Citizens United is having positive effects on U.S. elections.
The most obvious is in political competition. Citizens United has made it far easier for challengers to compete with incumbents, particularly challengers in late-breaking races.
The first two elections under Citizens United — the 2010 midterms and the 2012 presidential election — yielded the lowest two-cycle incumbent reelection rate in the House of Representatives since 1966.
The 2014 race was also more fluid than most election cycles. The advantage that regulation of campaign contributions and spending gives to incumbents is well documented. Indeed, after passage of the Federal Election Campaign Act in 1974, incumbents, who had outspent challengers, on average, approximately $1.5 to $1 quickly began outspending them $4 to $1 — and remains there today.
Thanks to Citizens United, however, funds spent by outside groups are leveling the playing field for challengers. When former Representative Dan Maffei, for example, complained that he lost his 2010 reelection campaign by 648 votes, he said outside groups had spent close to $1.5 million to defeat him in his New York state district. But he didn’t mention that he still outspent his opponent by more than $500,000. That’s just one of dozens of examples of Citizens United equalizing campaigns.
Citizens United has been an equalizer at a macro level as well. In both 2010 and 2012, Democrats and their allies outspent Republicans and their allies — but spending enabled by Citizens United helped close the gap. In 2014, Republicans and allies outspent the Democrats and allies, by about 6.5 percent. But the conservative edge in outside spending enabled by Citizens United was less than 5 percent.
Some complain that Citizens United has given rise to “dark money” in U.S. politics. This dark money isn’t new, however. It has been around for decades.
Citizens United did not even change the rules on disclosure of campaign contributions. In fact, there is more disclosure of campaign spending in U.S. politics today than ever before. All federal candidates, political parties, PACs and Super PACs are required by law to disclose all donors of more than $200.
Even dark money isn’t truly dark. It is just spending by nonprofit advocacy groups, such as the U.S. Chamber of Commerce and the American Chemistry Council. It totals about 5 percent of all U.S. political spending.
None of the doomsday predictions about Citizens United have come true. In the three election cycles since the ruling, there have been more competitive races and more voices heard. Foreign corporations are not spending in U.S. races. Even the rate of campaign spending growth has slowed, and spending between the Republicans and Democrats in U.S. politics has been made more equal by Citizens United.
Citizens United is often misunderstood, its core holdings intentionally distorted by those who seek to limit political speech. But it was, and remains, beneficial for American democracy — and a crucial victory for the free speech necessary to free elections.
Former Federal Election Commission Chairman Bradley A. Smith holds the Copenhaver Chair of Law at West Virginia University and is chairman of the Center for Competitive Politics.