March/April 2013

Campaign Finance after Citizens United

Three years ago, the U.S. Supreme Court handed down its decision in the landmark case of Citizens United v. Federal Election Commission. The decision found that Congress had no power to prohibit funding speech undertaken by corporations or labor unions. Later, lower courts followed the case in deciding SpeechNow v. Federal Election Commission, which established the legal foundation for a type of political action committee known as the Super PAC.

The nation has now experienced both mid-term and presidential elections that were governed by the outcomes of these cases. At a Cato Institute Conference in January, two panels of experts came together to examine the consequences of these decisions over the last several years and whether or not anything has in fact changed.

The first panel focused on what happened in Citizens United: How did elections in particular and politics more generally change as a result? Bradley Smith, a professor of law at Capital University and the former chairman of the Federal Election Commission (FEC), argued that a campaign of disinformation has led many to misinterpret the impact of these decisions. “The fact is that these cases did not change nearly as much as some people have been led to believe,” he explained. The reason for the alarmism, Smith continued, is that many campaign finance reformers hope to silence their political opponents.

Robert F. Bauer, a partner at Perkins Coie and former counsel to President Obama, agreed that Citizens United “has come to represent something larger than itself,” adding that it’s too soon to know whether it has really transformed the election landscape. Ray LaRaja, associate professor of political science at the University of Massachusetts, Amherst, argued that these two cases have accelerated the amount of money directed at groups, but also stressed that the direct impact on election outcomes is unclear.

“Normatively, I think more money should flow through political parties rather than groups because, at least in theory, parties are more accountable, they have broader coalitions, they tend to use their money to help challengers, and they’re less inclined to support extremists.”

Don McGahn, a member and former chair of the FEC, weighed in on the second panel by examining both the current state of campaign finance and which policy prescriptions decisionmakers should consider moving forward. He began by defending the current framework. “How can you silence Citizens United from saying things about Hillary Clinton when the nightly news says that and more about everyone?” McGahn asked.

“You’re selecting different speakers for regulation.” Looking ahead, he noted that some in Congress will be pushing for more disclosure, while others make no bones about their desire to reverse precedent and silence certain kinds of speech.

Other speakers throughout the day included Lawrence Lessig, a professor of law and leadership at Harvard Law School, and John Samples, director of the Center for Representative Government at the Cato Institute.

Throughout the day, several experts hit upon a reoccurring theme: the regulation of campaign finance cannot exist without government control of the message’s content. Ultimately, the future of campaign finance remains difficult to predict. But at least for now, the Court has determined firmly that there are limits on the ability of government to contain the political speech of its citizens.