Defending the defensible: Citizens United two years and one election later.

By mw | Related entries in Elections, Money, Supreme Court

Who says nothing good came out of Citizens United?

Continuing with the recent “Big Money” theme here on the Donk…

Over two years have passed since the Supreme Court cleared any barriers to corporate participation in our electoral process. This decision was widely panned across the political spectrum and may have damaged the Courts reputation. Many on the right, left, and center feared the consequences of even more big money being unleashed in the political process, but the most hysterical and apocalyptic criticism came from the left. Words like disaster, catastrophe, subversive, destructive, and indefensible were and are routinely used by the left to describe the Court’s decision.

Instead of speculating about the future, enough time has passed that we can now begin to assess the actual effects of the decision as opposed to our fear and loathing of what might happen. Tim Cavanaugh of Reason Magazine takes a look at the subsequent impact of the Citizens United Supreme Court decision and finds

“Five Ways Citizens United Is Making Politics Better”:

“…as we enter the second year of the 2012 campaign, it’s already clear that removing legal restrictions on the right to petition the government for a redress of grievances has done about what you would expect such a deregulation to do: allowed more voices, issues, and ideas into a political marketplace that nobody—except party bosses and newspapers that have lost their monopolies—could legitimately want to restrict.”

Cavanaugh lists five 2012 election improvements wrought by the Citizens United decision:

    1) It shakes up the local races – to the benefit of both liberals and conservatives.
    2) It gives President Obama political cover to ignore his own firmly held election finance reform convictions (which you may recall he also ignored in 2008, but without the political cover of a SCOTUS decision). After all, principles only go so far.
    3) It has raised the bar on comedy in both election advertising and commentary.
    4) It untethers political issue and interest groups from political parties.
    5) It enabled a more competitive and entertaining GOP primary process.

You can read his detailed rationale for each point yourself. It is not one of Cavanaugh’s better efforts. I’m not sure whether he is trying to advance a serious argument or engage in amusing political snark. It looks like a little of both, to the detriment of both.

While I don’t find his arguments all that compelling, they do provide food for thought. The one exception is point number 3 – Stephen Colbert knocked that one out of the park. His nightly promotion of his own Super PAC and subsequent creation of political ads from that PAC were hilarious. Interestingly, its very existence also supports Cavanaugh’s points 4 and 5.

I was never particularly comfortable with the Citizens United decision, but was also highly dubious of the spectacle of histrionic hand-wringing, cries, lamentations, and rending of garments from the left.

Money is undoubtedly the major factor in any political campaign. We know that by looking at the 2010 mid-term elections. Meg Whitman ran the most expensive gubernatorial campaign in history here in California, and she is now our governor. Three of the five biggest spenders in the 2010 Senate contests were Republicans Linda McMahon in Connecticut, Sharron Angle in Nevada, and Carly Fiorina in California. They all won, Republicans took the majority in the Senate, and Harry Reid lost his job.

Oh wait. None of that happened. They did spend enormous sums on their campaigns, the spending was supplemented with even more enormous sums from Super PACs, and yet they all lost. Voters are not as stupid or easily swayed as many seem to think. They are perfectly capable of discounting money spent in the campaign and making a rational collective decision on the candidates. Money is a factor, but just one of many, and probably not the most important.

When push comes to shove, if the issue comes down to a trade-off between more corporate influence vs. erosion of free speech protection, I prefer to err on the side of free speech. It is a similar tradeoff to accepting that pornography is part of the price we pay to ensure our free speech protections are not compromised. Neither the potential for increased corporate influence nor pornography is too high a price to pay to protect that particular freedom.

Will be cross-posted on The Dividist Papers when I get around to it.


This entry was posted on Monday, March 19th, 2012 and is filed under Elections, Money, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

5 Responses to “Defending the defensible: Citizens United two years and one election later.”

  1. Tully Says:

    I still get a laugh out of those who are enraged by the second Citizens Untied case but cheered the FEC decision in the first (involving Michael Moore’s explicitly political Fahrenheit 9/11). Anti-Bush film = “free speech,” anti-Hillary film = “outrageous and unconscionable corrupt corporate attempt to influence national election.”

    Sauce. Goose. Gander.

    Readers of legalese can find true legal comedy gold in Justice Stevens’ 90-page dissent, a determined defense of judicial activism in support of the subjective unequal application of election laws by federal fiat.

  2. mw Says:

    @ Tully
    There you go – A 6th way that Citizens United improves politics:

    Justice Stevens Supreme Court stand-up (sit-down?) comedy routines.

  3. khaki Says:

    I understand the ACLU backed the Citizen’s United decision. I think that should get more play.

    I never worried so much about the flood of money as the potential flood of undisclosed money. The populous can’t judge what we can’t see and I’m not convinced there are enough protections in the law to ensure 100% transparency.

  4. mw Says:

    @Khaki
    Agree. I think the ruling was more focused on the problematical issue of prohibition rather than disclosure (I could be wrong about that). It seems that the transparency and disclosure issues should be something that can be easily dealt with legislatively. I don’t care how much money is being spent in a campaign, as long as I know who is providing the money.

    Not sure why that has not happened, particularly with Obama calling out the Supes in the SOTU two years ago, and promising a legislative fix.

  5. Angela Says:

    I agree Khaki. Good point.

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