Citizens United gives freedom of speech back to the people

January 16, 2015
Voters fill in their ballots at a polling place located in Shoaf's Wagon Wheel during the U.S. midterm elections in Salisbury

Voters at a polling place located in Shoaf’s Wagon Wheel in Salisbury, North Carolina, November 4, 2014. REUTERS/Chris Keane

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.


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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.

Republican Cory Gardner waves after winning the midterm elections in Denver, Colorado

Republican Cory Gardner after taking a Senate seat from Mark Udall in Denver, Colorado, November 4, 2014. REUTERS/Rick Wilking

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.

Poll workers review voter authorization forms and provisional ballots after the polls closed at a church during the U.S. presidential election in Charlotte, North Carolina

Poll workers review voter authorization forms and provisional ballots after the polls closed in Charlotte, North Carolina, November 6, 2012. REUTERS/Chris Keane

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.


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My legislators refuse to meet with me, they no longer have time for town hall meetings, and dismiss my concerns about infrastructure, education and job training, clean air and water, a sustainable habitat, and man made climate change.

Yet they have time to meet with the wealthy and business who want a regressive tax that burdens middle class families and strangles investment and they can spend more time on the phones asking for money.

Evidently you are not poor or middle class to see and feel this bias.

Posted by Flash1022 | Report as abusive

What a refreshing counterpoint Professor Smith, thank you!

Posted by ltcrunch | Report as abusive

Rubbish! Absolute Rubbish!

Posted by upstater | Report as abusive

By the same logic, you should be allowed to just pay off a judge in a trial. The lawyer who offers up the most money to the judge’s bank account…. clearly has the most solid and logical case…. or else…. why would they have all that money?

Money = smart = right. Right?

Posted by AlkalineState | Report as abusive

What a clueless view of the effects of citizens united. The ruling has promoted political propaganda (which you frame as information) by the wealthy and corporations to buy politicians and political favors. You don’t have to look any further than the clown car that IS the tea party, or the constant push by republicans for a pipeline we don’t need to see the negative effects of “outside spending”.

Posted by Whipsplash | Report as abusive

Now witch Company is paying you to write this?

Posted by mmcg | Report as abusive

By Bradley A. Smith is delusional, he grasps at straws to defend the indefensible.

Fact checker is here: es/2015-01-20/what-do-4-tons-of-texas-br isket-and-lady-antebellum-have-to-do-wit h-2016-

Posted by Vertigo | Report as abusive

in your second sentence, you [the author] start name-calling people who disagree with the citizen’s united ruling. is reading any further necessary?

Posted by happycathappy | Report as abusive

Good the more the merrier …. lets come out of the dark into the light. Stand tall for your causes, if you are really American.

Posted by Amwatching2c | Report as abusive

The problem isn’t with money. The problem isn’t with free speech. The problem is with manipulated speech: propaganda, lies, half-truths, marketing techniques, etc. While the money spent in campaigns should be watched and accounted for, this is a side show distracting us from the need for structural reforms. Not legal reforms. Reforms in our habits. Organizations like FactCheck should be encouraged. Where has the League of Women Voters gone? They used to run the presidential debates, if I remember. How were they edged out? If the public owns the airwaves, why can’t there be time donated to the presentation of candidates and their policies? We basically know nothing valuable about candidates and their policies until AFTER we elect them. No one has a crystal ball, but what we do borders on the insane. And maybe that’s why political office office attracts such neurotics and psychotics.

I have no problem with transparency with funding. What about transparency with speech? Policy proposals? Character?

Posted by aeci | Report as abusive

The writer explains: “First, corporations are still prohibited from giving to candidates’ campaigns…”

Yes, they have to give to PAC first, who then gives it to the campaign. Takes about 3 minutes of wire transfers. Wow, that was complicated. Good thing no lawyers or sleeze ball offshore corporations have found THAT loophole yet.

This is why the writer has no credibility. They either don’t know this, or they don’t show this. Dumb or dishonest, take your pick.

Posted by AlkalineState | Report as abusive

You’ve got to be kidding. What a complete load of misinformation. How much did the corporate lobby pay you to write this.

You’re response to CU giving rise to dark money is that “it was here before”… seriously. So that makes it ok then… ?

You don’t have to be a PHD Economist to realize that giving corporations the same rights as living breathing human beings is just plain wrong.

There is already far too much money and corruption in our government. We need to eliminate all money from political office. Provide the exact same advertising for each candidate.. REPRESENT ALL CANDIDATES and parties equally. Create consequences for lying in political ads, prosecute politicians for fraud and corruption and reinstitute a little thing called CONFLICT OF INTEREST.

Citizens United was one of the biggest shams and final signal to anyone who didn’t already realize that our government is for sale and our leaders and law makers are for sale to the highest bidder. And then we wonder why the middle class is starving and living on the streets while a hand full of manipulators get’s filthy rich.

Only in America

Posted by RebelWithaClue | Report as abusive