- The Washington Times - Monday, January 20, 2020

Even President Trump never stood on the dais of the House of Representatives and tongue-lashed the Supreme Court justices sitting in front of him during a State of the Union address.

But that’s exactly what President Barack Obama did 10 years ago, days after the justices delivered a 5-4 decision in Citizens United, a case that ruled organizations have First Amendment political speech rights that Congress can’t constrain.

Tuesday marks a decade since the high court handed down the ruling in a decision that to this day remains a dirty word among Democrats.


SEE ALSO: Case brief: A look at the Citizens United decision


Yet analysts say its legacy is far more complicated than the “Overturn Citizens United” movement suggests. Some Democrats themselves have stopped worrying and learned to love the ruling, with the party riding a wave of “dark money” in 2018 as it regained the House majority.

“None of the catastrophic predictions have come true,” said Bradley A. Smith, a former Federal Election Commission chairman and founder of the Institute for Free Speech. “There’s more competition than ever. We’ve had five elections since Citizens United. In four of them, either the presidency has changed hands or one of the houses of Congress has.”



Not everyone agrees.


SEE ALSO: Super PAC spending soars


The Center for Responsive Politics says $4.5 billion in outside spending poured into races over the last decade, helping fuel the most expensive decade of elections in history.

“In our 35 years of following the money, we’ve never seen a court decision transform the campaign finance system as drastically as Citizens United,” Sheila Krumholz, executive director of the Center for Responsive Politics, said in the organization’s analysis this month.

Indeed, the landscape for political spending looks completely different now than before the ruling.

In 2008, the last pre-Citizens United election, outsiders spent $574.4 million in independent expenditures.

Four years later, the next presidential election, when Citizens United was on the books and super political action committees were on the playing field, traditional entities spent $690.2 million — but Super PACs nearly equaled them at $609.9 million.

In 2016, Super PACs shelled out $822.1 million in independent expenditures, swamping the $598.7 million spent by the traditional entities.

Open the floodgates

David Bossie began laying the groundwork for the case in 2004.

As the head of Citizens United, a conservative advocacy group, he watched as filmmaker Michael Moore ran venomously anti-Bush ads for his movie “Fahrenheit 911” — commercials that, had they been run by a political organization, would have been subject to all sorts of arcane restrictions under the Bipartisan Campaign Reform Act, better known as McCain-Feingold.

Citizens United began making its own, conservative films, establishing a record as a production company. Then as the 2008 election approached, it made an anti-Clinton film and planned to run ads promoting it amid the elections.

Mr. Bossie then sued the Federal Election Commission, going on the offense to demand a ruling that the ads were protected free speech.

The case would reach the Supreme Court in 2009, just six years after the justices had upheld most of McCain-Feingold. But there was a new lineup — in particular, Justice Samuel A. Alito Jr. had replaced Justice Sandra Day O’Connor — and a much more pointed issue before the courts: just how much power did the government have to restrict political speech amid a campaign.

Mr. Bossie said the key moment came when the Obama administration lawyers admitted that under existing law, the government could ban books.

“That was a difference-maker in this case,” he said. “That was a major reason we won. No one in American politics or jurisprudence believes in banning books. When the government admitted McCain-Feingold allowed them to do that, we won.”

The 5-4 decision overturned a 1990 Supreme Court case, Austin v. Michigan Chamber of Commerce, and part of the 2003 case that had upheld McCain-Feingold.

Where Justice O’Connor had backed McCain-Feingold, Justice Alito joined the majority in ruling against it.

They concluded that Americans, including those who gather together as a corporation, have a First Amendment right to political speech. That does not mean they can contribute directly to campaigns, but they were freed to spend their own money on their own messages, as long as they didn’t coordinate with a campaign.

Days later, Mr. Obama stood on the House’s rostrum, scolding the justices. He warned that Citizens United would open “floodgates for special interests — including foreign corporations — to spend without limit in our elections.”

Justice Alito was not happy and was caught on camera mouthing “not true” at Mr. Obama.

Mr. Obama was, in fact, stretching things. Nothing in the ruling made it legal to funnel foreign money into campaigns, though analysts say it did make it easier to conceal that money being spent in elections.

Super PACs

It took several months for the real ramifications to set in.

In March, the federal circuit appeals court in Washington, citing the Citizens United case, ruled that if corporations had a right to unlimited political speech, then so must political action committees.

Thus was born the Super PAC — an organization that could raise limitless amounts of money and to spend it advocating for or against a candidate in an election, so long as the group didn’t coordinate directly with candidates or their campaigns.

Mr. Smith, who worked the appeals court case, known as SpeechNow.org v. FEC, says the ruling was the logical outcome, calling anything else “untenable in conjunction with the First Amendment.”

Opponents, though, say the high court, which in the past has recognized the corrupting nature of money in politics, could have used that justification to carve an exception for political speech.

A decade later, House Speaker Nancy Pelosi still calls the ruling a “crushing decision.”

Citizens United undermined a fundamental American value,” she said last week at a press conference where Democrats attacked the ruling anew. “We are a government of the many, not a government of the money.”

She and fellow lawmakers say Congress at the very least should require more disclosure by donors fueling the outside-spending boom. The House has already voted on that kind of legislation this year, saying they want to eliminate “dark money.”

Some Democrats want to go further and attempt to amend the Constitution to repeal Citizens United and curtail the First Amendment.

The party’s presidential candidates held a forum in Iowa over the weekend to complain about the 2010 ruling, and each of them urged action.

Businessman Andrew Yang said he would expand the number of justices and pack the court with people who would overturn the ruling.

Sen. Amy Klobuchar said the court shouldn’t treat Citizens United as binding precedent.

Yet many Democrats have been just as eager as Republicans to embrace the new tools of Citizens United. Mr. Obama attended a fundraiser for a Super PAC backing him in the 2012 election, and former Vice President Joseph R. Biden is benefiting from a Super PAC in the 2020 primary, according to the Center for Responsive Politics.

Democrats actually outspent the GOP in outside non-party money in 2016, the CRP says.

President Trump in that campaign said he would “fix” the system. But in office, he has done nothing to make good on that promise and has instead embraced a Super PAC, America First Action.

Lev Parnas and Igor Fruman, two key figures in the impeachment case against Mr. Trump, made contributions to America First Action through a shell company, the Center for Responsive Politics says. They face criminal charges on allegations that they made the donations on behalf of a Ukrainian government official.

Party poopers

Some warnings from 2010 have not been borne out.

For starters, the flood of money from major companies seeking to buy elections has not come to pass. CRP says businesses feared a public backlash from that kind of involvement with politics.

Instead, the big players are ultra-wealthy individuals and many of the usual entities that have long played in politics, such as the U.S. Chamber of Commerce, Planned Parenthood and the Sierra Club.

Mr. Smith says dark money is also not as important in elections as many might believe, amounting to perhaps 4% of total political spending.

Whatever the numbers, Mr. Smith says it’s tough to argue Citizens United broke politics. Incumbents are less likely to win re-election now, and competition is so healthy that one chamber of Congress has flipped in 2010, 2014 and 2018, and the White House flipped in 2016. Only one election since the ruling, 2012, saw no major upheavals.

Voter turnout was also up in the two most recent national elections, Mr. Smith said: “This claim it would frustrate voters is just not true.”

What has undoubtedly occurred is a loss of power for the political parties themselves.

Political parties’ outside spending has remained steady at between $200 million and $250 million for each election in the last decade. Super PACs spent four times that in 2016.

“The balance of political power shifted from political parties to outside groups that can spend unlimited sums to bolster their preferred candidates,” the CRP says.

Mr. Bossie said that’s fine with him — and that’s coming from someone who is a member of the Republican National Committee, one of two committee members from Maryland.

“I’ve always been a believer that more options are better than fewer,” he said. “I find it to be liberating for the American people to be able to choose where they want their money to go, and for what purpose.”

Mr. Bossie also said those complaining about too much money in politics should keep things in context.

“Last year alone, U.S. auto companies spent $18 billon — $18 billion — on television advertising over one year, to sell you the better pickup truck or SUV,” he said. “What is too much money in determining the future of the United States, and who the next president of the United States is?”

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