A funny thing happened on the way to repealing Citizens United: it ceased to matter.
It ceased to matter in terms of money buying elections goes, at least. As a First Amendment matter, the principles of the Citizens United decision are still important. Preserving free political speech will be the Court’s gift to America for years to come.
But as a tactical matter? As far as elections are concerned? All the hyperbole from the Left about Big Money buying our elections turned out to be completely untrue, as the 2016 presidential election demonstrated. For all of the tears shed by Berniebro millennials about Citizens United, its practical effects turned out to be exactly what advocates have claimed all along: more free speech, less censorship, and a continued tradition of free and fair elections.
Cash Rules Everything Around Me? Not Any More
Let’s just look at how much the big money interests were able to buy our elections this time around. In the Democratic primaries, the two main candidates were pretty evenly matched in terms of money and votes. Through June, when the primary contest was over, Federal Election Commission documents show that Hillary Clinton outraised Bernie Sanders by $274 million to $235 million. Tracking spending by outside groups is more difficult, but the Center for Responsive Politics gives Clinton the clear advantage here: through June 2016, outside groups spent $84 million to support her campaign—139 times what they spent on Sanders.
Maybe money can buy votes in a Democratic primary, at least when the party apparatus is also on your side. But the Republican primaries were a different story. Again, there is not a huge disparity in direct contributions. Through June, Donald Trump raised $91 million, Ted Cruz had $92 million, Ben Carson raised $64 million, Marco Rubio had $46 million, and Jeb Bush $35 million. But again, the outside money—the spending anti-Citizens United people hate the most—tells a different story. Through June 2016, Bush had $121 million spent on his behalf, far more than any other candidate, despite his departure from the race in February. Cruz, Rubio, and Trump all had about half as much outside help, yet they all outperformed Bush.
Take that measurement back to February, Bush’s last month in the race, and it makes the difference even starker. On February 20, CRP listed $118 million in outside money raised for Bush, compared with $42 million for Cruz, $31 million for Rubio, and less than $2 million for Trump. Lefties would tell us that this made Bush’s candidacy a slam dunk, but by the end of that month, Bush had three convention delegates for his $153 million in total funds raised. Trump had 82.
Hillary’s Fundraising Didn’t Help Her Win
Pundits on the Left could call that a fluke, or chalk it up to the unusually high number of Republican candidates. But the general election unwound the same way. Again using CRP’s latest figures, we can see that Hillary achieved an epic victory in fundraising, if not in electoral votes. Her direct campaign fundraising dwarfed Trump’s by two-to-one: $497 million to his $247 million.
In outside money, the Citizens United hater did her best to take advantage of that ruling. Here, Clinton out-raised Trump by closer to three-to-one, with $205 million against Trump’s $74 million.
If money really does buy votes, as Democrats allege, Trump got a bargain. Each of his votes represents $5.12 in total fundraising, while each of hers “cost” more than twice as much, at $10.69.
They Hate It, But They Won’t Tell You What It Is
For all we heard about the Citizens United case in 2016, we heard precious little about what the case was actually about, or what its verdict meant. Sanders was the loudest voice on the issue from the left, but his own statements do not make it terribly clear what about the decision he opposes. Consider this statement on his campaign website: “The Citizens United decision hinges on the absurd notion that money is speech, corporations are people, and giving huge piles of undisclosed cash to politicians in exchange for access and influence does not constitute corruption.”
Millions of Bernie’s supporters were fed this line and swallowed it whole. Despite her skill at raising the exact sort of money she claims to hate, Clinton promised to “appoint Supreme Court justices who will protect Americans’ right to vote over the right of billionaires to buy elections. She will also propose a constitutional amendment to overturn Citizens United within her first 30 days in office.”
Again, these are slogans, not reasoning. Noticeably, neither candidate quoted the opinion they wanted overruled. That’s because neither candidate wanted to admit what Citizens United really was (a censorship case), or what would have to be amended or eliminated in order to change the decision (the First Amendment).
What is Citizens United, Really?
Bernie and his acolytes say that the main holding of Citizens United is that “money is speech” and “corporations are people.” It did involve a corporation that spent money to publish its speech, but that is as far as the similarity goes. A look at the facts and the legal reasoning of the opinion tells us more.
Citizens United was (and is) a nonprofit corporation that wanted to publish their ideas about a candidate in an election year. Specifically, they wanted to publish Hillary: the Movie, a film critical of Hillary Clinton, on DirectTV before the 2008 election.
Harmless, no? That publication of political ideas would have been very much in line with our system of free expression and free elections. But several years earlier, Congress had passed the Bipartisan Campaign Reform Act (BCRA), which was designed to “get money out of politics.” The FEC ruled the film an illegal “electioneering communication” and banned Citizens United from distributing it. If that were a story about some third-world dictatorship, our reporters would call it censorship. Instead, they called it good governance.
Money Makes Free Speech Possible
The money-is-speech part of the complaint elides certain details. The Supreme Court never said “money is speech.” If they had, you would see that quoted in every anti-Citizens United screed on the internet. Instead, they said that people cannot be prevented from spending money to publish their speech. That’s different. Spending money to purchase ordinary goods and services is not protected by the First Amendment. Spending money to get something before the public, on the other hand, is an essential part of the freedom of speech—unless you own a TV station and get all the employees to work for free.
Money isn’t speech, but money publishes speech. It is not a new idea: the Supreme Court recognized it decades before Citizens United in Buckley v. Valeo (1976,) when they held that Congress may not limit political campaigns’ expenditures.
It makes sense: the right to publish (the original point of the freedom of the press) is what makes speech effective and leads to a true marketplace of ideas. Freedom of speech—without the freedom to publish that speech—would be useless. You can still walk, just as you can still yell your ideas from a soapbox, but the effectiveness of the right is limited to the point of absurdity.
Do Corporations Have Any Rights?
The corporations-are-people line also contains a grain of truth, but only just. Citizens United is a corporation, but the idea of a corporation having a right to publish things is nothing new. Way back in 1936, the Supreme Court held in Grosjean v. American Press Co. that newspapers, although they were corporations, were entitled to certain rights granted to people, including freedom of speech and of the press. The principle has never seriously been challenged. As I noted when writing on this subject last year, “much of the unfavorable coverage of the court’s decision was carried in media outlets owned by for-profit corporations. Many were newspapers that, like Citizens United, make explicit endorsements of candidates before every election and do so under the protection of the First Amendment.”
Why would a corporation have any rights at all? Again, it is a matter of making rights effective. The average person does not have enough money to produce a 30-second political ad, let alone a full-length movie. Only a few rich people—the kind of “richest one percent” that Bernie loves to vilify—have that sort of capital lying around. When the rest of us want to get a political message out there, we have to band together and pool our resources. Democrats have been known to say that “government is the name we give to the things we choose to do together.” Corporations, similarly, could be justly said to be “the name we give to the things we choose to do together without coercion.”
After Hillary lost last year’s election, liberals implored each other to give to left-wing causes as a way of fighting Trump and his agenda. But none of the organizations that work for those causes would be able to do a thing if they did not possess some of the rights of individuals: they are all corporations. Lobbying the government, running advertisements about political issues, suing the government in court when the think it is violating the law: these are all rights guaranteed to Americans by our Constitution. If they were not also guaranteed to corporations, they would be largely meaningless. You and I do not have the time or the wherewithal to do all of those things; the ACLU (a non-profit corporation) does.
Trump Revolutionized By Eschewing Big Money
After 2016, not only is the Left’s anti-Citizens United mantra nonsensical, it is also irrelevant. The political ends sought after by the major parties have shifted in response to the rise of Trump. The changing means they use to achieve those ends has been less remarked upon, but is no less dramatic.
Trump revolutionized our politics by stepping outside the big money system. He took advantage of the news media’s lust for ratings by appearing on cable news shows (or calling in) as often as possible, getting his message spread far more widely and more in-depth than a commercial or mailer could ever do. His use of free social media wrong-footed opponents from the beginning and reached the people without going through the usual journalistic interlocutors.
While doubts remain about the wisdom of a President tweeting as freely and casually as a private citizen, no one should have any doubt that social media can be a huge advantage to a candidate, and one that costs next to nothing. If opposition remains to Citizens United, it is not fact-based opposition. The victory of a candidate who was far outraised and outspent means that money does not, in fact, buy elections.
Money is just the lever that partisans on the Left would use to limit speech. Now that money has been shown not to matter, that lever is broken. Anyone still opposed to Citizens United wants censorship for its own sake. Thankfully, the Supreme Court won’t let them have it.