Monday, June 18, 2012

What's the big deal about Citizens United?

My OpEd appears in today's Capitol Morning Report.

The US Supreme Court's much-maligned decision in Citizens United has been described as a "watershed," "landmark," or "revolutionary" case. Few have asked whether it made much difference.

Citizens United, handed down in 2010, invalidated a portion of the Bipartisan Campaign Reform Act (commonly known as McCain-Feingold), which prohibited corporations and labor unions from spending general treasury funds on communications advocating the election or defeat of specific candidates.

The Court based its decision on two main conclusions. First, corporations must be treated as akin to individuals, at least in the campaign finance context. Second, the Court found that campaign expenditures by independent groups -those not coordinated with a candidate- are not corrupting. (In a 1974 decision, the Court found that corruption or the "appearance of corruption" justified placing limits on contributions made directly to candidates.)

As a result of the second provision, a circuit court and the Federal Election Commission later found that contributions to independent expenditure groups could not be limited either. If spending by independent groups cannot give rise to corruption then there is no compelling reason to limit donations to them. Thus, we now have so-called Super PACs. These are independent expenditure only committees that can raise and spend unlimited sums.

Sounds like a pretty big deal, right? Well, yes and no. The Court's decision in Citizens United did not change the law in California. Thanks to Prop 34, approved by voters in 2000, California's non-federal political campaigns have been under a Citizens United-like regime for a dozen years. Indeed, the Supreme Court's decision in Citizens United essentially means that the rules covering independent expenditures in California are in place across the nation and in federal elections within the state itself.

Nonetheless, I would argue that Citizens United represents an important psychological shift. The handcuffs are off. Corporations and labor unions no longer need to disguise their advertisements as anything other than pleas to get voters to vote for or against a candidate. Any concerns that corporations or labor unions may have had about whether it was legal to make certain expenditures have likely evaporated. We live in a new environment with very few limits on corporations and independent expenditure groups.

As a result of Citizens United and other factors, more money will be spent on California political campaigns. While full and accessible disclosure is important, it is not a solution to a system flooded by money. Money buys access and influence, whether or not it is disclosed. To think that candidates will not be grateful, and give more access to those who spend large sums on their behalf (even when those sums are not coordinated with the candidate's campaign) is to ignore common sense.

But California is a unique place for many reasons. Therefore I caution against using California as a bellwether for how Citizens United will affect elections throughout the nation. For instance, in California we have the initiative process. This process, designed to reduce the influence of special interests in our lawmaking process has ironically done just the opposite. What one needs to get a measure qualified for the ballot is money (to pay signature gatherers) and what one needs to try to defeat a proposed initiative is money (to pay for negative advertising). This is, in many cases, a process dominated by money. It is also an experience which is not affected by Citizens United.

It is also important to remember that campaigns in California are getting more expensive for reasons unrelated to Citizens United. First, we have a new open primary, top two election law. This law means that every candidate will attempt to appeal to every voter in the primary election, as opposed to just vying for the votes of members of that candidate's party. Reaching the entire electorate is expensive. This law also means that the general election between the top two vote getters could be a real, competitive fight. In the past the "real" race often happened in the primary election, and the general election was somewhat inconsequential, and therefore inexpensive.

Second, we now have newly drawn districts. In the past, sitting legislators, who drew lines to keep themselves in power and ensure that they were safely re-elected, drew legislative districts. This time around an independent redistricting commission drew the lines. These lines could lead to more competitive races, which means more money will be spent in these races.

In sum it is difficult to extrapolate much from California's experience pre-Citizens United. It is, however, easy to see that more money will be spent in California and throughout the nation thanks to that decision.

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