The following post is adapted from my 2012 essay, “Spending and Amending: The Past and Future of Citizens United.” It evaluates four major predictions, identified in “Back to the Future? The Effects of Citizens United v. FEC in the 2010 Election,” by Peter L. Francia, that motivate would-be “reformers” of Citizens United. Taken together, these four predictions comprise the usual “case against Citizens United.” In this series of five posts, I evaluate each prediction and examine whether or not each was supported by data from the 2010 midterm elections. The fifth and final post draws conclusions from the data I have examined. You can read parts one, two, three, and four at these links.
Conclusion: For the reasons stated in parts 1-4, political expenditures in the 2010 election do not, by themselves, demand remedy.
1) Although there was a spike in spending and advertising across the board, it increased most steeply among independent groups, indicating a Citizens United effect. However, while independent spending spiked, it did not reach unprecedented levels. In addition, some portion of the increase in spending is attributable to other factors, such as the nature of the election itself, the types of races that were being fought, and the mood of the nation. Citizens United has resulted in an increase in independent spending, but it’s still too early to tell by how much. Certainly, there is no early evidence that this trend will be destructive to the democratic integrity of future elections, as it is far from obvious that current spending patterns are normatively bad, or that they demand correction by constitutional amendment.
2) There is no early evidence that corporations are falling over themselves to “buy elections” or even attempt to influence them through Super PACs. Because of corporations’ profit incentive, they face a very narrow set of constraints on spending in the political arena. Entering the political arena is simply too risky for the preponderance of corporations, and most corporate officers will not want to risk tainting their brand or making enemies in the public. Even when a corporation has discretionary funds to spend, it is usually in its best interest to lobby sitting members of Congress on particular bills of concern, rather than attempt to influence elections, which concern a host of irrelevant issues.
3) The Democratic Party and its candidates still enjoyed an advantage in advertising for most of the 2010 midterm election season, but the increase in spending by independent conservative groups helped even the playing field between Democrats and Republicans. There does not seem to be sufficient evidence to conclude that the 2010 election was heavily influenced by conservative PACs, or that Republicans will enjoy huge advertising advantages far into the future. The competitive balance in most races was fairly even, and PAC spending helped narrow the spending gap in some cases. The voice of the people was not lost; it was amplified.
4) There has been no evidence that foreign individuals, corporations, or organizations have gained a foothold in American politics. Federal law prohibiting foreign nationals from contributing to federal election campaigns has remained unchanged since the sixties, and Citizens United did nothing to upset this prohibition. This is an issue of statutory law, and whether foreign nationals contribute more or less to political campaigns has nothing to do with the Citizens United decision.
While Citizens United did affect the volume, mode, and source of spending and advertising, none of these changes has obvious normative implications. Corporations largely avoided the political arena, neither Republicans nor Democrats enjoyed a significant advantage in advertising, and foreign nationals remained on the sidelines. While Citizens United seems to have led to more spending and greater advertising by Political Action Committees, this increase did not come from disproportionately corporate sources or have an inordinately determinative effect on elections.
Corporate entities, labor unions, and Super PACs seem to be using their newly protected free speech rights fairly conservatively and responsibly. As a Constitutional republic, we ought to err on the side of protecting all speakers’ First Amendment rights until they are shown to be obviously destructive or harmful. In the meantime, proposed constitutional amendments lack sufficient justification for seeking to muzzle certain speakers simply because of distaste for their corporate status.
