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Wednesday, October 26, 2016

Note To The Last Citizens United Denier: It Really Did Change Money In Politics

Note To The Last Citizens United Denier: It Really Did Change Money In Politics

It’ll take more than undoing Citizens United to reform money in politics, but there’s no denying that it’s had a huge impact on campaign spending.

Matt Bai argues in this coming Sunday’s New York Times Magazine that the Supreme Court’s 2010 decision in Citizens United didn’t dramatically change the impact of money in politics. Claims that it did “are just plain wrong,” he says.

Bai’s stance is not as deliciously contrarian as he might think. It is more or less the position I took at the time of the Citizens United decision and one shared at the time by a number of legal scholars and political scientists. I called myself a “Citizens United minimalist.”

And, taking things most literally, that view was not wrong. As Bai points out, Citizens United was an incremental decision in a series of moves by the Supreme Court and lower courts that weakened any efforts to control the influence of money in politics. Leaving aside the dicta in the decision (such as the majority’s suggestion that only quid pro quo corruption, and maybe not even that, could justify regulation), it was not even the most significant of those incremental moves. The Wisconsin Right to Life case that preceded CU, which first weakened the limits on electioneering communications by independent groups, and the D.C. Circuit Court’s SpeechNow decision later in 2010, which opened the door to Super PACs, are probably more consequential legally. Corporations, especially big publicly held ones, have never been the major players in outside political spending, and they aren’t even now.

I still think some of the conclusions that are frequently drawn about Citizens United are overstated. I’m still dismayed to hear claims that we need to amend the Constitution or that the decision hinged on the idea that corporations are people. (It doesn’t.)

But Bai’s stale claim that Citizens United isn’t largely responsible for the explosion of outside money in politics is no longer credible. I realized that in November of 2010, when I wrote a piece with the title “The Re-Education of a Citizens United Denier.” At the most basic legal level, Citizens United formed the basis for the D.C. Circuit Court’s decision in SpeechNow vs. FEC, and thus there is a direct path from CU to Super PACs.

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  • Of course Citizens United changed the political landscape and the effects of unlimited money. Why anyone would try and debunk that fact is beyond me. The idea that the only cure is a Constitutional Amendment is astounding. If undertaken the process would take years, if not a decade to accomplish. In the interim more and more damage would be done to our institutions.

    The recent non-vote by the Senate to stop Disclosure is very troubling indeed. Why the GOP filibustered is something that will dog them for a long time. Certainly they should be aware that the path of money changes over time and that money could just as easily go the other way. It has happen before and it will again. Maybe then they will flip-flop back again.

    Justice Scalia just the other day stated that he had no regrets about the decision. ‘I think that Thomas Jefferson would have said the more speech, the better.’ As to PAC’s he added ‘That’s what the First Amendment is all about. So long as the people know where the speech is coming from.’

    Well there you have it. Corporations are people and money is speech. For the moment those ideological points of view are the law of the land. For better or worse that is the game. The GOP voted against Jefferson and Scalia’s view that the people need to know where the speech is coming from. Of course the people paying attention know that the money (speech?) is coming from the moneyed special interest who have their own agenda in mind. Truly very strange times we are dealing with these days.

    • DurdyDawg

      Not strange. Dangerous.

  • Apart from going back to the Eisenhower era in one dramatic push, the only way to return sanity to our political process is to slowly undo what has been done to us. Start with the move to amen, then take down the unlimited funding, then insist on calrity in campaigns. It will take time, but the corruption did not occur overnight, it was a long drawn out process by venal judges and rapacious politicos.
    Can you fight that kind of filth by accepting it, I have the feeling that it is getting harder for even corporations to ignore the smell. By denying the inflence of CU you endorse the whole corruption of the sanitary system in the stable you built.

  • William Deutschlander

    Citizens United took something bad and with the aid of 5 judges, totaly FUC-ED the ELECTION PROCESS UP! AUTOCRACY and DICTATORSHIP are coming soon!

  • Do these guys hide in the wood work? Where do they come from? Smart? I won’t say it HE HE HE