Former FEC Chairman Demystifies Citizens United

Published Wed, Jan 25 2012 5:46 AM

The recent passing of the two-year anniversary of Citizens United v. FEC has brought predictable handwringing on the left. The hysteria has included debates on whether the decision portends the “end of democracy as we know it” and calls for constitutional amendments stripping all legal protection from corporations. Perhaps ironically, these calls are coming from people who have organized in the corporate form to disseminate political speech.


But are the dire warnings and extraordinary solutions justified? Brad Smith, former Chairman of the Federal Election Commission who now chairs the Center for Competitive Politics, recently discussed Citizens United’s effects on our political system with Joseph M. Birkenstock, former chief counsel of the Democratic National Committee.


Smith addressed the common misperceptions about Citizens United explaining: (i.) how it actually changes campaign-finance law, (ii.) where the law could possibly be improved, (iii.) its likely effect on the current election cycle; and (iv.) what the decision means at the state and local level.


At its core, Citizens United aligned an inconsistent area of law by overturning the speech-repressive outlier Austin v. Michigan State Chamber of Commerce. Its primary impact is to permit corporations and unions to spend money on campaigns. The Citizens’ ruling, combined with v. FEC, which allows unlimited contributions to “527” advocacy groups, enables competing speakers in the political marketplace to get their messages out quicker and easier. The net result is a better-informed citizenry and a stronger democracy.  


According to Smith, any defects in the current set-up involve disclosure requirements. While people often mischaracterize Citizens United as allowing clandestine Super PAC donations, Super PACs are still PACs and have to abide by all previous disclosure requirements. The problem, to the extent it exists, is identifying large corporate donors contributing to generic-sounding PACs. Any change could involve removing overly burdensome regulations on small donors and requiring more transparency on “mega-donations.”  But these issues are minimal as internet research can usually apprise the curious to underlying funding sources.


Regardless of disclosure issues, however, Citizens United changes very little about our political process. In 2010 for instance, Citizen United-enabled political spending accounted for about 300 million dollars—an amount less than one-tenth that spent by candidates and political parties. The 2012 election cycle will be nasty and expensive, and a contrary Citizens United holding would have almost no effect on that premise. There will be slightly more money spent this election cycle but the main change will be who is spending.


Any deviations from the current campaign-finance paradigm would stem from the minority of states that ban Citizen United-type expenditures for state and local races. Smith commented on the recent Montana ruling, which the RNLA previously discussed here. He views the decision as a direct challenge the Court’s holding. And believes the Supreme Court will summarily reverse the Montana court, thus blocking any further attempts by states to dodge Citizens United by proclaiming their “uniqueness.”

Thus contrary to the “sky is falling” meme disseminated by some, Citizens United has not wrecked our democracy, but made it stronger by allowing more voices into our national conversation.  

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# The Republican Lawyer Blog said on Tuesday, February 14, 2012 5:59 AM

As President Obama continues to deflect attacks from those in his own party over his super Pac-super

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