By Kyle Sammin
Monday, February 20, 2017
A funny thing happened on the way to repealing Citizens United: it ceased to matter.
It ceased to matter in terms of money buying elections
goes, at least. As a First Amendment matter, the principles of the Citizens United decision are still
important. Preserving free political speech will be the Court’s gift to America
for years to come.
But as a tactical matter? As far as elections are
concerned? All the hyperbole from the Left about Big Money buying our elections
turned out to be completely untrue, as the 2016 presidential election
demonstrated. For all of the tears shed by Berniebro millennials about Citizens United, its practical effects
turned out to be exactly what advocates have claimed all along: more free
speech, less censorship, and a continued tradition of free and fair elections.
Cash Rules
Everything Around Me? Not Any More
Let’s just look at how much the big money interests were
able to buy our elections this time around. In the Democratic primaries, the
two main candidates were pretty evenly matched in terms of money and votes.
Through June, when the primary contest was over, Federal Election Commission
documents show that Hillary Clinton outraised Bernie Sanders by $274 million to
$235 million. Tracking spending by outside groups is more difficult, but the
Center for Responsive Politics gives Clinton the clear advantage here: through
June 2016, outside groups spent $84 million to support her campaign—139 times
what they spent on Sanders.
Maybe money can buy votes in a Democratic primary, at
least when the party apparatus is also on your side. But the Republican
primaries were a different story. Again, there is not a huge disparity in
direct contributions. Through June, Donald Trump raised $91 million, Ted Cruz
had $92 million, Ben Carson raised $64 million, Marco Rubio had $46 million,
and Jeb Bush $35 million. But again, the outside money—the spending anti-Citizens United people hate the
most—tells a different story. Through June 2016, Bush had $121 million spent on
his behalf, far more than any other candidate, despite his departure from the
race in February. Cruz, Rubio, and Trump all had about half as much outside
help, yet they all outperformed Bush.
Take that measurement back to February, Bush’s last month
in the race, and it makes the difference even starker. On February 20, CRP
listed $118 million in outside money raised for Bush, compared with $42 million
for Cruz, $31 million for Rubio, and less than $2 million for Trump. Lefties
would tell us that this made Bush’s candidacy a slam dunk, but by the end of
that month, Bush had three convention delegates for his $153 million in total
funds raised. Trump had 82.
Hillary’s
Fundraising Didn’t Help Her Win
Pundits on the Left could call that a fluke, or chalk it
up to the unusually high number of Republican candidates. But the general
election unwound the same way. Again using CRP’s latest figures, we can see
that Hillary achieved an epic victory in fundraising, if not in electoral
votes. Her direct campaign fundraising dwarfed Trump’s by two-to-one: $497
million to his $247 million.
In outside money, the Citizens
United hater did her best to take advantage of that ruling. Here, Clinton
out-raised Trump by closer to three-to-one, with $205 million against Trump’s
$74 million.
If money really does buy votes, as Democrats allege,
Trump got a bargain. Each of his votes represents $5.12 in total fundraising,
while each of hers “cost” more than twice as much, at $10.69.
They Hate It, But
They Won’t Tell You What It Is
For all we heard about the Citizens United case in 2016, we heard precious little about what
the case was actually about, or what its verdict meant. Sanders was the loudest
voice on the issue from the left, but his own statements do not make it
terribly clear what about the decision he opposes. Consider this statement on
his campaign website: “The Citizens United decision hinges on the absurd notion
that money is speech, corporations are people, and giving huge piles of
undisclosed cash to politicians in exchange for access and influence does not
constitute corruption.”
Millions of Bernie’s supporters were fed this line and
swallowed it whole. Despite her skill at raising the exact sort of money she
claims to hate, Clinton promised to “appoint Supreme Court justices who will
protect Americans’ right to vote over the right of billionaires to buy
elections. She will also propose a constitutional amendment to overturn
Citizens United within her first 30 days in office.”
Again, these are slogans, not reasoning. Noticeably,
neither candidate quoted the opinion they wanted overruled. That’s because
neither candidate wanted to admit what Citizens
United really was (a censorship case), or what would have to be amended or
eliminated in order to change the decision (the First Amendment).
What is Citizens United, Really?
Bernie and his acolytes say that the main holding of Citizens United is that “money is
speech” and “corporations are people.” It did involve a corporation that spent
money to publish its speech, but that is as far as the similarity goes. A look
at the facts and the legal reasoning of the opinion tells us more.
Citizens United was (and is) a nonprofit corporation that
wanted to publish their ideas about a candidate in an election year.
Specifically, they wanted to publish Hillary:
the Movie, a film critical of Hillary Clinton, on DirectTV before the 2008
election.
Harmless, no? That publication of political ideas would
have been very much in line with our system of free expression and free
elections. But several years earlier, Congress had passed the Bipartisan
Campaign Reform Act (BCRA), which was designed to “get money out of politics.”
The FEC ruled the film an illegal “electioneering communication” and banned
Citizens United from distributing it. If that were a story about some
third-world dictatorship, our reporters would call it censorship. Instead, they
called it good governance.
Money Makes Free
Speech Possible
The money-is-speech part of the complaint elides certain
details. The Supreme Court never said “money is speech.” If they had, you would
see that quoted in every anti-Citizens
United screed on the internet. Instead, they said that people cannot be
prevented from spending money to publish their speech. That’s different.
Spending money to purchase ordinary goods and services is not protected by the
First Amendment. Spending money to get something before the public, on the
other hand, is an essential part of the freedom of speech—unless you own a TV
station and get all the employees to work for free.
Money isn’t speech, but money publishes speech. It is not
a new idea: the Supreme Court recognized it decades before Citizens United in Buckley v. Valeo (1976,) when they held
that Congress may not limit political campaigns’ expenditures.
It makes sense: the right to publish (the original point
of the freedom of the press) is what makes speech effective and leads to a true
marketplace of ideas. Freedom of speech—without the freedom to publish that
speech—would be useless. You can still walk, just as you can still yell your
ideas from a soapbox, but the effectiveness of the right is limited to the
point of absurdity.
Do Corporations
Have Any Rights?
The corporations-are-people line also contains a grain of
truth, but only just. Citizens United is a corporation, but the idea of a
corporation having a right to publish things is nothing new. Way back in 1936,
the Supreme Court held in Grosjean v.
American Press Co. that newspapers, although they were corporations, were
entitled to certain rights granted to people, including freedom of speech and
of the press. The principle has never seriously been challenged. As I noted
when writing on this subject last year, “much of the unfavorable coverage of
the court’s decision was carried in media outlets owned by for-profit
corporations. Many were newspapers that, like Citizens United, make explicit
endorsements of candidates before every election and do so under the protection
of the First Amendment.”
Why would a corporation have any rights at all? Again, it
is a matter of making rights effective. The average person does not have enough
money to produce a 30-second political ad, let alone a full-length movie. Only
a few rich people—the kind of “richest one percent” that Bernie loves to
vilify—have that sort of capital lying around. When the rest of us want to get
a political message out there, we have to band together and pool our resources.
Democrats have been known to say that “government is the name we give to the
things we choose to do together.” Corporations, similarly, could be justly said
to be “the name we give to the things we choose to do together without coercion.”
After Hillary lost last year’s election, liberals implored
each other to give to left-wing causes as a way of fighting Trump and his
agenda. But none of the organizations that work for those causes would be able
to do a thing if they did not possess some of the rights of individuals: they
are all corporations. Lobbying the government, running advertisements about
political issues, suing the government in court when the think it is violating
the law: these are all rights guaranteed to Americans by our Constitution. If
they were not also guaranteed to corporations, they would be largely
meaningless. You and I do not have the time or the wherewithal to do all of
those things; the ACLU (a non-profit corporation) does.
Trump
Revolutionized By Eschewing Big Money
After 2016, not only is the Left’s anti-Citizens United mantra nonsensical, it
is also irrelevant. The political ends sought after by the major parties have
shifted in response to the rise of Trump. The changing means they use to
achieve those ends has been less remarked upon, but is no less dramatic.
Trump revolutionized our politics by stepping outside the
big money system. He took advantage of the news media’s lust for ratings by
appearing on cable news shows (or calling in) as often as possible, getting his
message spread far more widely and more in-depth than a commercial or mailer
could ever do. His use of free social media wrong-footed opponents from the
beginning and reached the people without going through the usual journalistic
interlocutors.
While doubts remain about the wisdom of a President tweeting
as freely and casually as a private citizen, no one should have any doubt that
social media can be a huge advantage to a candidate, and one that costs next to
nothing. If opposition remains to Citizens
United, it is not fact-based opposition. The victory of a candidate who was
far outraised and outspent means that money does not, in fact, buy elections.
Money is just the lever that partisans on the Left would
use to limit speech. Now that money has been shown not to matter, that lever is
broken. Anyone still opposed to Citizens
United wants censorship for its own sake. Thankfully, the Supreme Court
won’t let them have it.
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