Citizens United Doesn’t Mean What Campaign Finance ‘Reformers’ Think It Does

Building on the excellent fisking of Newsroom by my colleague Caleb Brown and Reason’s Scott Shackford, let me reiterate that Citizens United has nothing to do with any problems regarding how we regulate political campaigns, perceived or real. 


Perceived: Campaign finance “reformers” think we’d be a lot better off if corporations, particularly foreign corporations, weren’t able to fund candidates and parties. Of course, Citizens United didn’t disturb the ban on that sort of thing, which has been in place since 1907. 


Real: Independent political speech — be it individual, corporate, union, advocacy group, neighborhood association, or informal group of friends — is largely unregulated (though you do have to register SuperPACs and disclose donors, be they individuals or corporations) but candidates and campaigns bear onerous burdens regarding contribution limits, disclosure requirements (which scare off small donors rather than large bundlers), and arcane coordination rules. A Supreme Court ruling is indeed at fault for the bizarre and largely unworkable way in which our laws have developed in this areas, but it’s not Citizens United. Instead, it’s the 1976 baby‐​splitting opinion in Buckley v. Valeo, which saw the Court rewrite the Watergate‐​era Federal Election Campaign Act, creating a piece of legislation much different than the global reform Congress passed (sound familiar?).


I’ve written a law review article about all this called “Stephen Colbert Is Right to Lampoon Our Campaign Finance System (And So Can You!),” which will run in the University of St. Thomas (MN) Journal of Law & Public Policy this fall. 


And Tuesday afternoon I’ll be testifying to that effect to the Senate Judiciary Committee’s Subcommittee on the Constitution (here’s the link to the hearing site, where you’ll be able to watch). Here’s an excerpt from my written statement (which isn’t online yet):

The underlying problem, however, is not the under‐​regulation of independent speech but the attempt to manage political speech in the first place. Political money is a moving target that, like water, will flow somewhere. If it’s not to candidates, it’s to parties, and if not there, then to independent groups or unincorporated individuals acting together. Because what the government does matters and people want to speak about the issues that concern them. To the extent that “money in politics” is a problem, the solution isn’t to try to reduce the money—that’s a utopian goal—but to reduce the scope of political activity the money tries to influence. Shrink the size of government and its intrusions in people’s lives and you’ll shrink the amount people will spend trying to get their piece of the pie or, more likely, trying to avert ruinous public policies.


.…


The solution is rather obvious: Liberalize rather than further restrict the campaign finance regime. Get rid of limits on contributions to candidates—by individuals, not corporations—and then have disclosures for those who donate some amount big enough for the interest in preventing the appearance of quid pro quo corruption to outweigh the potential for harassment. Then the big boys who want to be real players in the political market will have to put their reputations on the line, but not the average person donating a few hundred bucks—or even the lawyer donating $2,500—and being exposed to boycotts and vigilantes. Let the voters weigh what a donation from this or that plutocrat means to them, rather than—and I say this with all due respect—allowing incumbent politicians to write the rules to benefit themselves.

Curiously, there will be six witnesses taking the “get corporate (and maybe even all private) money out of politics” view as against one, me, for deregulation and freedom of speech. That seems a bit unfair; I’d think that the campaign‐​finance‐​reform zealots need at least a dozen people to stand up against my very simple “remove contribution caps but require disclosure for big players” argument. Should be fun.


In short, while there are (at least) 99 problems with how we manage elections, Citizens United ain’t one.