Since early 2010, the litmus test for holding office as a Democrat has turned in no small part on opposing Citizens United v. FEC. It is difficult to overstate how strongly liberals oppose Citizens United, and indeed it is a chief plank for each of the two candidates for the Democratic nomination for president. Bernie Sanders has vowed to overturn it; Hillary Clinton has done the same. Since the only practical political path to overturning Citizens United would be to pass a constitutional amendment rewriting the First Amendment, this is mostly bluster. But it is telling bluster.
Citizens United, of course, is the Supreme Court decision that struck down limits on independent political expenditures by corporations and unions. Citizens United is basic First Amendment stuff, free speech 101: as Justice Anthony Kennedy’s majority opinion points out, while government is perfectly within its established rights to govern speech with disclosure and disclaimer regulations, “it may not suppress that speech altogether.” Of course it may not: liberating free speech from government suppression is one of the animating principles of the First Amendment.
Democrats see it differently: in their eyes, unlimited political expenditures, even from parties independent of the candidates for whom they advocate, run the risk of corrupting our politics. Many liberals seem confused about the decision itself, thinking that Citizens United removed limits on donations directly to campaigns. It did not. But in either case, there is great anxiety that the Supreme Court decision has paved the way for rich individuals and corporations to “buy elections.”
(Whom has Sanders accused of trying to buy elections? “Billionaires,” “Wealthy families,” “The very wealthy,” “The Koch Brothers,” “the rich,” “one family,” “people.” One worries there aren’t enough elections to go around!)
Money Can’t Buy Me Votes, Yeah
All of this makes for great political theater, but it doesn’t actually appear to be, well, true. There seems to be no correlation between the amount of independent expenditures in support of a candidate and that candidate’s ultimate success in any given primary or election. If that were the case, then you would expect that the candidate with the most PAC dollars backing him up would win the election—and that doesn’t always happen.
Consider the 2012 election. During that cycle—the first presidential election after Citizens United was decided—political action committees backing Mitt Romney outspent those backing Barack Obama by more than double: Romney-allied SuperPACs spent a little more than $140 million, while those supporting Obama spent just over $70 million. We all remember how 2012 ended: with Obama the victor.
Even intra-party, more PAC money does not necessarily equal victory. In the same election, SuperPACs in favor of Rick Perry spent a little over $4 million, while those supporting Ron Paul spent just under $170,000—yet Paul got more than double the number of votes for Perry at that year’s Iowa caucuses, and Paul would stay in the race for five more months, while Perry dropped out in shortly after Iowa.
Can “billionaires” “buy elections” under Citizens United? Do Super PACs invariably give candidates unfair advantages? It sure doesn’t seem that way, or Romney would currently be finishing up his first term, and Perry wouldn’t have had to bow out before wacky old grandpa Paul. Indeed, in the midst of the 2012 race the Wall Street Journal admitted Super PACs weren’t having much of an effect; after the election, the Los Angeles Times admitted Super PACs hadn’t done much to influence the outcome.
But Maybe Mega-Millions Can
But if Super PACs can’t unduly influence elections—if it’s all just a fever dream in Bernie Sanders’s head—that doesn’t mean our electoral process can’t be wildly skewed due to certain types of campaign expenditures. Donald Trump has proven this hand over fist. How? Because of his overwhelming advantage with “earned media,” or news and commentary coverage focusing on his campaign. During this election season, Trump has received a staggering nearly $2 billion dollars in free media.
Perhaps the most astonishing part of the 2016 campaign season has been the attention the media have lavished on Trump. There seems to be nothing involving Trump that the media will not cover. In January, for instance, CNN aired his veteran’s charity event in its entirety opposite the GOP debates on the same night; in both October and April People magazine ran full-length cover stories on Trump’s family and his candidacy. Trump has clearly benefitted enormously from the free media: with virtually the entire Republican establishment against him (give or take a Chris Christie or two), he still managed to secure the nomination.
It isn’t hard to figure out why. For starters, there is the sheer volume of Trump’s media advantage: his almost $2 billion dwarfs the amount of bought media spent by his nearest competitor, Jeb Bush, who shelled out a mere $82 million before he dropped out. His closest Republican competitor in the earned media department was Ted Cruz, who received a paltry $313 million; even Hillary Clinton, his presumptive challenger for the presidency, has received just $746 million in free media, or nearly 150 percent less than Trump.
The Difference Between Ads and Infomercials
Then there is the fact that “earned media” is usually different not merely in degree but in kind to campaign media. It makes sense from a simple, practical perspective. Much bought campaign material, for instance, airs during commercial breaks, where many people will be up using the bathroom or else just tuning out. The same could be said for online advertisements or radio spots in which people can just turn the volume down.
But airing Trump during media time slots is different. It’s ostensibly the news, but in reality it’s an event people tune into specifically to watch. Broadcasting a Trump campaign rally or a rambling Trump press conference draws people who are interested in seeing an extended look at what this controversial political firebrand is up to. This means people will likely pay more attention to a Trump broadcast feature than they would a Cruz TV spot.
The media networks and outlets know this, which is why they handed Trump nearly $2 billion in free coverage: it gets the ratings up and the magazines off the racks and the clicks on the websites. Trump knows it, which is why he continually topped himself in craziness throughout the campaign. The cameras would turn to him, the people would watch, and Trump wouldn’t have to spend a dime. It worked. Trump is the GOP’s presumptive nominee for president.
Take Note, Kids
What are the lessons to be learned here? There are two. The first is this: Trump is probably a far weaker candidate than anyone, even Trump himself, realizes. Without the sustained media blitz, he likely would have flamed out last year and faded into irrelevance. Now, as a general election candidate, the media—the members of which are overwhelmingly liberal—may turn on him. He may lose the free coverage, or the coverage may turn hostile and unwelcoming, at which point he will be without what was likely the key factor in his success over the past year: no-charge, friendly media.
The second lesson is this: the Democrats are wrong. Citizens United did not unleash an army of election-buying billionaires on the country. Independent campaign expenditures may in fact have no ironclad effect on elections, and there is little to worry about from the Koch brothers or “billionaires.” But the media are a different story: as this election has proven, they can radically influence the direction a campaign can take, elevating a shoddy, unlikable, half-bright candidate above a field of immense talent, and all at their own expense.
This means if Democrats actually believe all the things they’re constantly saying about “buying elections,” they would more sensibly start trying to regulate the media, which recently discovered it has powers no Super PAC could ever dream of: the power to make Donald J. Trump a viable candidate for president. Instead, laws they championed that sought to restrict PAC activities specifically excluded the media.
Perhaps liberals could dream up some kind of regulation to fix this problem: an expenditure cap for political coverage, say, which media outlets could not exceed. Or perhaps Congress can ban television stations from covering campaign events. We don’t want media outlets “buying” elections, do we?
Of course, to propose these kinds of regulations would be to propose flagrant censorship that would go against the text and settled jurisprudence of the First Amendment. No sensible person would want such a thing. Then again, the Left is demanding we apply precisely this kind of censorship to Super PACs.
So maybe Democrats can stop bloviating about “wealthy families” and “the rich” and instead just accept that American free speech is both very broad and exempt from political suppression—that both the media and independent campaign organizations have the right to report on, and advocate for, whomever they wish. To propose anything less would be an insult to the First Amendment, and a path to tyranny.