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Tuesday, July 17, 2018

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.