Eric Posner: Citizens United Is Still Worth Hating

Citizens United Is Still Worth Hating
Eric Posner
Slate.com
November 9, 2012

Among the election’s many losers were rich people who spent millions of dollars on donations to super PACs that supported losing Republican candidates. David Weigel says that the rich people wasted their money. Kevin Drum concludes that Citizens United, the much-maligned 2010 Supreme Court case that struck down limits on corporate campaign spending, didn’t kill democracy after all. The truth is more complicated. Real harm likely occurred; it is just invisible. The underlying problem is that the court, under the guise of protecting free speech, interfered with efforts to regulate the political system, a serious harm in itself.

The story begins with the 1976 case Buckley v. Valeo. While upholding limits on campaign contributions and certain reporting and financing rules, the court in Buckley held that dollar limitations on expenditures by candidates and independent groups violated the First Amendment’s protection of free speech. Campaign donations and expenditures, the court said, were a form of expression—in essence, money equals speech. And while the government’s legitimate interest in preventing corruption could justify limits on the donations (because of the potential quid pro quo), the same was not true for expenditures, as long as they were made “independently” from the candidate. It was this case, not Citizens United, that ensured that rich people could baste their favored candidates with unlimited cash, albeit through “independent” expenditures, like television ads produced without direct coordination with the candidate.

In Citizens United, the court took an additional step and struck down a law that prohibited corporations from financing advertisements that supported a candidate shortly before an election. The court said the law, part of the McCain-Feingold campaign finance reform, violated the free speech rights of corporations. A lower court (the D.C. Circuit) then extended this ruling to the organizations we call super PACs, which accept donations, bundle them, and spend them independently of campaigns. 

Citizens United became a lightning rod, with liberals arguing that the majority opinion, written by the five conservative justices, would magnify the influence of the wealthy on electoral outcomes. Conservatives retorted that the decision properly struck down a law that infringed on people’s right to speak using the organizational advantages of the corporate form.

The super PACs spent much of the total $1 billion in outside expenditures raised in the 2012 campaign—a vast increase relative to 2008. And yet Democrats prevailed in many major races, retaining the presidency and a majority in the Senate. Does that mean that Citizens United doesn’t actually matter?

Faculty: 
Eric Posner