Constitutional Law

Citizens United Did Not Ruin Our Political System

'[A] long habit of not thinking a thing WRONG, gives it a superficial appearance of being RIGHT.' -- Thomas Paine, Common Sense

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Few United States Supreme Court cases are more despised than Citizens United v. Federal Election Commission. There are those who claim it has singlehandedly ruined our electoral system. How could one case do this? Well, according to its critics, Citizens United drastically restructured politics in a way that increasingly favors a few corporations and rich individuals while most Americans have seen their voices “drowned out.” The only remarkable detail about these persistent claims however, is the absence of evidence supporting them and the abundance of evidence directly refuting them.

It takes only seconds to Google a graph demonstrating that campaign spending has substantially increased since the 2010 ruling, and this fact alone seems to fuel a great deal of the critical rhetoric. However, evidence of increased spending does not singlehandedly support the critical claims I have mentioned. Understanding the source of the increase is what is ultimately revealing.

In 2015, a team of political scientists collected data between 2008 and 2012 of all campaign spending by Fortune 500 firms. The group also included the next 84 firms, so really one could call it a study of the Fortune 584. Keep in mind, this is a study of corporate campaign spending during the presidential election immediately before the Citizens United ruling and immediately after. The data revealed that while a dramatic increase in overall spending occurred, the source of the increase was not major corporations. In fact, the top 10 revenue-generating corporations did not change their spending amounts in any statistically meaningful way.

Even more remarkable was the data regarding so called “dark money” independent expenditures. Adam Bonica, a Stanford political scientist, calculated the total cost spent in 2012 of all funds directed through 501(c) or 527 organizations (where the disclosure of donors is not mandated), was $322 million. A small figure when you consider this was an election where total expenditures surpassed $6 billion.

One of the likely reasons a corporate or dark money drown out has not occurred is that campaign contributions are not reliable investments. Consider the 2016 election where Jeb Bush had the backing of some very wealthy contributors who gave him more money than every other Republican candidate combined. Jeb! was then able to spend over $130 million rather quickly. If ever there was an example to prove the power of spending an obscene amount money to “drown out” all other voices, poor Jeb! was it. The result, however, was that his campaign did not win a primary in a single state.

For a period in 2016, Scott Walker spent $90,000 a day on presidential campaign stops, staff, and media blitzes only to go on and lose, badly.

Such results suggest that either rich corporations or wealthy individuals are really bad in determining who to spend money on, or that campaign spending like advertising in general, is a risky, unreliable investment.

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When engaging critics of Citizens United with these facts, I will often discover that while many seem intimately familiar with all the rhetorical criticisms about its effect, few are aware of the facts of the case specifically. For example, that it involves a form of government censorship called “prior restraint.”

Prior restraint is a form of censorship where a speaker is forced to ask the government for prior permission to speak. It is also a practice the First Amendment was originally enumerated to prevent. In Citizens United, the prior restraint at issue functioned through a law banning certain entities — corporations, including non-profits, and unions — from engaging in “electioneering communication” 30 days before an election.

When viewed from these facts, the Court striking down a form of prior restraint that conferred differential treatment based on the type of speaker is not an extraordinary deviation from free speech protection that critics claim. It is a vital extension of constitutional principles.

This is not to say free speech is absolute. Legitimate exceptions to the general rule against censorship exist. For example, information relating to national security is one of the strongest exceptions, and the one most often abused. It is also undeniable that unfettered expression can cause harm. As I have tried to illustrate before however, we are not going to censor or prosecute our way out of these problems where they exist. Moreover, dramatic increases in speech protection have coincided with a steady reduction in societal harms.

It is also important to recognize that throughout our history, fears over the harm that might come from speech are later revealed to be overblown. As one of my favorite free speech works puts it:

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Critics of the modern First Amendment have unwittingly repeated history. Information frequently appears terrifying; only the speakers vary. Past threats have included speech from Communists, anarchists, union organizers, civil-rights activists, doctors providing abortions, Jehovah’s Witnesses, and a cavalcade of others. Time proved these fears unfounded. It will show the apocalyptic predictions about recent First Amendment law to be more Chicken Little than Cassandra.

The only helpful answer in a free-society to claims of harm from speech is simple: Prove it. So far, the critics of Citizens United, at least as it applies to federal elections, have fallen far short of the necessary high constitutional burden.

Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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