The Political Response

The doctrinal aftermath may have been relatively subdued, but the practical and political aftermath was anything but that. It was a tale of two tsunamis, one predicted that never happened and one predictable that is still howling through the political system.

The predicted one was the tidal wave of corporate money that was supposedly going to be released by the seismic energy of Citizens United and would swamp and overwhelm our democracy in a splurge of corporate political spending. That never happened[1]—and that’s actually not much of a surprise. Here’s what did happen in the wake of the decision.

Somewhat ironically to be sure, organized labor took immediate and full advantage of the way Citizens United freed them up to do what they had never been able to do before: use union treasury funds, supplied by members and nonmembers alike, for explicit candidate electioneering and beyond the confines of their union membership. Previously such partisan work, the largest proportion of it pro-Democratic, had to be paid for from hard-to-get, voluntarily contributed funds to union PACs. Now unions could shift their independent spending to the Citizens United accounts and make direct contributions to candidates through their PACs. Shortly after the Court’s decision, early reports indicated widespread union use of their new rights in California elections, for example.[2] This political benefit to organized labor was only occasionally mentioned in the wave of hostile commentary about the Court’s ruling; nor was prominence given to the fact that the statutes invalidated or limited in their application restrained unions as well as corporations from engaging in core First Amendment activities.

Yet the predicted wave of corporate financial political intervention never materialized. Of all of the super PAC independent expenditure spending that escalated in the 2012 elections, very little of it came from corporate contributions. It was mostly contributed by individuals.[3] Very wealthy ones to be sure, but ones permitted to do that going back to Buckley. It is no surprise that ExxonMobil, despite its billions in annual profits, spent almost nothing on outside spending for partisan politics in the wake of Citizens United.[4] Corporations may spend millions—if not billions—on lobbying and otherwise attempting to influence elected officials, but they have not spent much trying to influence campaigns.

Corporations like that had not done so when they could, either during the long period when federal law only restrained corporate or union “express advocacy” of candidate election or at the state and local level in many states where corporate expenditures were lawful in local elections. So why should they do so now. Indeed, prior to Citizens United, more than half the states allowed corporations and unions to engage in independent political expenditures. There was no evidence that this freedom led to excessive corporate or union influence or political corruption or poor governance, and, indeed, many of those states were consistently ranked among the most well governed.[5] Similarly, despite the dire predictions, Citizens United has not led to an avalanche of corporate spending at the state election level. Indeed, a new study has concluded that the increase in independent spending at the state level did not come from large individual or corporate contributions or expenditures, and that there was very little corporate spending.[6] The great basketball icon and business superstar Michael Jordan once explained it easily as to why he was not contributing to a Democratic candidate: “Republicans buy shoes too.”[7] To be sure, there may have been some corporate contributions to nonprofit groups that, in turn, used the funds for election-related advocacy that we are not aware of because such groups are not required publicly to disclose their contributors. Based on this, the cry of “dark money” has been coined and raised to describe such alleged secret funding. But best estimates are that a very small sliver of the election-related activities emanating from independent groups of all kinds can be fairly characterized in this fashion and that constituted an even much smaller proportion of overall federal election spending in 2012.[8] And corporations—and unions—have been financially supporting the activities of countless nonprofits, across the political spectrum, for quite some time now, even though many of such activities might have an electoral impact. Insofar as this is a problem, it was not caused by the Court’s decision in Citizens United. Moreover, those rare corporations that did openly use their funds or resources to take partisan stands would often open themselves up to punishing boycotts and would just as often quickly retreat from any political engagement.75

The predictable tsunami was a tidal wave of criticism attacking the decision and the Court that rendered it beginning almost immediately. Most major news outlets condemned the decision and predicted it would unleash corporate wealth on our democracy. Editorials decried the Court’s giving corporations the same rights as people. This, despite the fact that the Court went out of its way to say that its affording these protections to corporations under the First Amendment was the only way that media corporations would be able to get the same protection.76 Hundreds, if not thousands, of political and advocacy organizations have mobilized their members to demonstrate and protest against the ruling.

But perhaps the most extraordinary moment in what really has become a war against Citizens United was when the president of the United States attacked the Court in front of the entire nation during his State of the Union Address as several of the justices sat in the audience. No president had ever done such a thing. That moment seemed to be the opening charge in political efforts to delegitimize the decision and make it a symbol for a Court that was too sympathetic to corporate interests.

Legal attempts to undermine the decision took two basic paths. First was the effort to expand disclosure and reporting obligations of any person or group, most especially corporations, that wishes to speak out about any politician or political issues. The Citizens United Court had blessed disclosure as both permissible and beneficial. But the proposed legislation, most notably the so-called

See Matt Nese, “Five Misconceptions About Dark Money,” available at: http://www.campaignfreedom. org/2015/07/08/five-misconceptions-about-dark-money/ (last accessed March 30,2016).

  • 75 The Target Stores and the Chick-Fil-A companies have been targeted for boycotts, and even threatened governmental harassment, because of political donations or support for conservative candidates or causes. See Amy Bingham, Target and Amazon Are the Opposites of Chick-Fil-A on Gay Marriage, ABC NEWS, July 27, 2012.
  • 76 An equivalence that most of the press continues to reject. In 2012, Justice Alito’s comments at a bar association event to the effect that without Citizens United the press would have no First Amendment protection drew an immediate condemnation from the New York Times, which insisted that its rights under the First Amendment were special and not dependent on its corporate status. See Editorial, Justice Alito, Citizens United and the Press, N.Y. Times, November 19, 2012. For a rebuttal to the Times’ view and the suggestion that the Court’s cases do not permit limiting such First Amendment protections to media companies rather than ideological corporations or, indeed, any corporation, see Michael McConnell, Reconsidering Citizens United as a Press Clause Case, 123 Yale L. J. 412 (2013).

DISCLOSE Act,77 was much broader and more burdensome than the kinds of reporting and disclosure the Supreme Court had in mind. Similar legislative campaigns have been undertaken at the state and local level. Of course, the Supreme Court long ago recognized, in a case involving the NAACP, that compelled disclosure could have a chilling effect on freedom of speech and association and had to be strictly justified.78

More broadly, there have been numerous proposals even to amend the Constitution to overturn the Citizens United ruling. Some would target the decision specifically by stipulating that corporations cannot spend funds to influence the outcome of the election. Others have recycled language around since Buckley stating that Congress and the state legislatures have carte blanche power to impose “reasonable” regulations on contributions and expenditures for political purposes. A few proposals, quite ludicrously, would declare that only living people, not corporations, have any constitutional rights and that the Constitution may not be interpreted to give any of its protections to corporations. Read literally, that would deny such entities, including even newspaper companies and nonprofit corporations, any rights to due process of law, any protection against unreasonable searches and seizures, any immunity against a taking of corporate property without just compensation, and the like. So far, no serious consideration has been given to any of those proposals.

One other form of overreaction to the decision has been the preoccupation with the campaign finance aspects of election campaigns in derogation of the merits of the issues and the qualifications of the candidates. It often seemed as if there were as many stories about how much money was being spent and who was behind or funding various ad campaigns as there were about the validity of the issues being raised. “Dark money” secret funding, lack of effective disclosure, behind-the-scenes billionaire donors—these become the stories to the detraction of and distraction from the issues and the candidates. And much more often than not the attack was against groups on the right, not the left. At least one liberal journalist has suggested that the press greatly exaggerated the avalanche-of- money stories and owes the public an apology.79

  • 77 The DISCLOSE Act was first introduced as H.R 5175 (s. 3620) shortly after the Court's ruling and sponsored by leading Democrats. The acronym stands for Democracy is Strengthened by Casting Light on Spending in Elections. One critic has suggested, tongue-in-cheek, that the real title should be, “Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections.” The act was defeated by one vote in the Senate. A so-called 2.0 version has since been introduced.
  • 78 NAACP v. Alabama, 357 U.S. 449 (1958).
  • 79 Ezra Klein, a prominent political journalist, recently issued the following mea culpa on the issue:

But it's hard to look at the 2012 election, with its record fundraising and the flood of super pacs and all the rest of it, and come away really persuaded that money was a decisive

  • [1] See Joel M. Gora, The First Amendment ... United, 27 Ga. St. U. L. Rev 935, 978-79 (2011);Matt Bai, How Much Has Citizens United Changed the Political Game, N.Y. Times Mag., July 17,2012; Tom Swanson, Spending and Amending: The Past and Future of Citizens United, Center forCompetitive Politics web site, July 24, 2013, available at http://www.campaignfreedom.org/2013/07/24/spending-and-amending-the-past-and-future-of-citizens-united-part-one-independent-spending-increase/ (last accessed March 30, 2016). Indeed, even the New York Times was forcedto concede that very few public corporations contributed to super PACs, and “[v]irtually no publiccorporations have spent their own money directly in political campaigns, a practice now permittedunder the Supreme Court’s Citizens United decision.” Nicholas Confessore, S.E.C. Gets Plea: ForceCompanies to Air Donations, N.Y. Times, April 24, 2013.
  • [2] See Steven Greenhouse, A Campaign Finance Ruling Turned to Labor's Advantage, N.Y.Times, September 26, 2011; Steven Malanga, Big Labor's Big Victories in State Elections, Wall St.J., November 16, 2012; Tom McGinty and Brody Mullins, Political Spending by Unions Far ExceedsDirect Donations, Wall St. J., July 10, 2012.
  • [3] See, Richard Briffault, Super PACs, 96 Minn L. Rev. 1644, 1678 (2012); see also EduardoPorter, Business Losing Clout in a G.O.P Moving Right, N.Y. Times, Sept. 3, 2013; James Bennet, TheNew Price of American Politics, THE ATLANTIC, Sept. 19, 2012; Byron Tau, Citizens United, 4 YearsLater, POLITICO, January 23, 2014 (noting “it’s been individuals giving the vast majority of cash,not companies.”).
  • [4] According to campaign finance monitoring groups, in 2012 ExxonMobil spent approximately$27,000 on outside spending, see, Open Secrets, available at http://www.opensecrets.org/orgs/summary/php?id=D000000129&cycle=2012 (last accessed February 21, 2016), and gave absolutely nothing to politically active nonprofit organizations. See, Michel Bechel, Top U.S. CorporationsFunneled $185 Million to Political Nonprofits, January 16, 2014, available at http:///www.publicinteg-rity.org/2014/01/16/14107/top-us-corporations-funneled-173-million-political-nonprofits (lastaccessed February 21, 2016).
  • [5] See Jan Witold Baran, election law primer for corporations, 287 (5th ed. 2008); PEWCenter on the States & Governing Magazine, Grading the States (2008). For studies of the situations in different States and how they changed their laws in relation to Citizens United, see Life afterCitizens United, National Conference of State Legislatures, January 2011, Citizens United v.FEC, Revised, available at http//www.followthemoney.org/press/ReportView.phtml?r=414&ext=1(last accessed March 30, 2016).
  • [6] See Jacob Gershman, WSJ Law Blog, New Study Counters Assumptions About Impact of CitizensUnited, January 23, 2014, available at: http://blogs.wsj.com/law/2014/01/23/new-study-counters-assumptions-about-impact-of-citizens-united/ (last accessed February 21, 2016).
  • [7] The great star has since changed his mind and became a major contributor to and fundraiser forSenator and later President Barack Obama. See Kurt Badenhausen, Michael Jordan Hosts $3 MillionObama Fundraiser in New York, FORBES web site, August 8, 2012, available at http://www.forbes.com/sites/kurtbadenhausen/2012/08/22/michael-jordan-hosts-3-million-obama-fundraiser-in-new-york/ (last accessed February 21, 2016).
  • [8] Testimony Statement of Bradley S. Smith before the Senate Judiciary Committee, Subcommitteeon Crime and Terrorism, on Current Issues in Campaign Finance Law Enforcement, April 9, 2013,available at: http://www.campaignfreedom.org/wp-content/uploads/2013/04/2013-04-09_Smith-SJC-Testimony_US-Senate_Campaign-Finance-Enforcement-Issues.pdf (last accessed March 30,2016); Matt Nese, The Surreal World of Pro-Regulatory “Studies,” Center for Competitive Politics website, July 25, 2013, available at: http://www.campaignfreedom.org/2013/07/25/the-surreal-world-of-pro-regulation-studies/ (last accessed March 30, 2016). Indeed, the Center for Competitive Politicsestimates that less than 5% of the campaign funding has been “dark money” and much of it comes fromsuch stealth groups as the United States Chamber of Commerce and the National Rifle Association.
 
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