Vox: Time for Liberals to Get Over Citizens United

Vox: Time for Liberals to Get Over Citizens United

It takes courage to buck the orthodoxy of your foundational audience, so it’s always nice in these polarized times to see a major publication like Vox offer a somewhat dissenting view from liberal orthodoxy on Citizens United and other progressive dog-whistles on campaign finance reform.  Today Scott Castleton writes: “Repealing the controversial decision is a pipe dream. And there are more promising avenues for campaign-finance reform.”

In 2017, the commissioner of the Federal Election Commission resigned, claiming “since the Supreme Court’s Citizens United decision, our political campaigns have been awash in unlimited, often dark money.” This was the animating sentiment of Bernie Sanders’s 2016 campaign for president; he even went so far as to claim that billionaires are simply “buying elections.”

This idea has given rise to a new liberal battle cry: Repeal Citizens United! Unfortunately, that tactic is naive and misguided, and relies on a misunderstanding of the law and politics surrounding the case. …

Let’s put the hated decision into context. The inundation of elections with private cash is not the result of Citizens but rather was facilitated by the 1976 decision Buckley v. Valeo. That case established the legal framework sanctioning billions of dollars of independent private campaign spending. In it, the Court ruled that limits on campaign donations — direct donations to candidates — are constitutional but said it was unconstitutional to limit non-donation expenditures, such as independently funded advertisements.

 Such independent spending — which cannot be coordinated with candidates, according to the Court — was protected under the First Amendment as not just speech but political speech. The idea is that money is a necessary instrument for supporting a political candidate, whether it’s paying for yard signs or taking out an ad in the newspaper.

Not unreasonably, the Court ruled that limitations on independent expenditures would constitute limitations on one’s ability to support a candidate through any number of media. Placing a dollar limit on such expenditures would arbitrarily prevent certain kinds of campaign support simply by the fact of how expensive they are. …

Citizens simply has not had the seismic legal impact that many think. Since Buckley protected money as speech, the only question was whether corporations were legitimate speakers. It may surprise some to hear, but the Court had already answered this question in 1978. In First National Bank of Boston v. Bellotti, the Supreme Court recognized a corporate right to free speech, concluding that the value of speech in the course of political debate does not depend on the identity of the speakerCitizens simply followed the precedent of these two cases.

So when liberals intone that “corporations aren’t people,” thinking they are making a knock-down argument against Citizens, they miss the point. Citizens did not make corporations persons. And corporations do not need to be persons to receive First Amendment protections. Citizens upheld the liberty, provided by Bellotti, of corporations to speak, and they speak under the rules provided by Buckley.

Castleton then suggests that the remedy for “big money” in politics is to encourage small money donations. He uses the example of small money propelling Bernie Sanders’ 2016 presidential campaign to prominence.

Castleton’s arguments are simplistic and often mis-guided, but at least he’s considering what others deem to be immovable dogma: that maybe censorship is not the answer. Just as with other forms of speech, where the correct answer to “bad” speech is more speech, maybe the answer to “the wrong” people spending “too much” money on elections is to help other people to speak their own minds.

There is another point that Castleton misses entirely: the amount of big money in politics is driven almost entirely by advertising costs. That was true in the correlation between the growth of television ad campaigns and the growth of campaign spending. Yet recent research suggests that, past a certain point, the effectiveness of these ads is zero on voter turnout, and one-half of one percent on candidates’ relative shares of the vote. Enough to affect very close campaigns, but not really a dramatic justification of the costly advertising.

In fact, recent presidential campaigns relative spending did not show an effect on the outcome, with the Clinton campaign and her allies outspending the Trump campaign and its allies two-to-one. The more effective campaigns, Obama and Trump, spent less money, and spent more of what they did spend on highly-targeted digital campaigns or similarly-targeted advertising blitzes.

The reason: the old adage of “half your advertising is wasted, but you don’t know which half” no longer applies in this era of rapid and highly-refined ad targeting. As Advertising Age reported: “And, while broadcast TV retained its dominance, the mass media mainstay of political advertising took a big blow from more targetable and data-driven ad options such as cable TV and digital.”

That dollar-driven trend will likely continue. Meaning that the question is not how much money is pouring into campaigns, but how that money is used.