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The Dispatch: What’s the Real Legacy of Citizens United?

Monday, January 20, 2020

In the run-up to the 10-year anniversary of the Supreme Court’s decision in Citizens United v FEC, law professor Richard Hasen wrote a thorough article for Slate that concluded “the decade of Citizens United has been a bad one for democracy.”

But in a surprise twist, spending by presidential campaigns has actually decreased since the Supreme Court’s landmark First Amendment decision and the side that spent less won in 2016. So perhaps the better question 10 years on is, did Citizens United matter?

. . .

So What Happens Next?

No limits, full disclosure. It may sound like a new type of poker game, but this idea would kill candidate-supporting super PACs overnight. Congress could lift the individual contribution limit and require campaigns to report all donations online within 24 hours of receipt. Sounds like a recipe for disaster? As it happens, 11 states already allow unlimited contributions from individual donors, including Texas, Pennsylvania, and Virginia. But, see, incumbent protection above. 

Gift tax. The idea here is to treat donations to super PACs over the federal limit like a “gift” that is taxed by the IRS and then use that money to publicly finance candidates who agree voluntarily to abide by certain limits. Currently 14 states have some limited form of public campaign financing, including Massachusetts, Florida, and New Jersey. But this only really works when both sides participate—and that means both sides have an incentive not to do so a la a campaign finance battle of wits

Democracy dollars. This is the idea that every citizen would get some amount of money (most likely in the form of a tax break) to give to the candidate of their choice. The idea being that, according to Andrew Yang, “these Democracy Dollars would, by the sheer volume of the U.S. population, drown out the influence of mega-donors.” But, fair warning, Seattle voters passed a measure like this back in 2015 funded by an increase in real estate taxes for their municipal elections but according to the Seattle Times, “outside influence PACs — mostly business and labor — have raised more money to pour into the 2019 council elections than was spent by outside committees in all previous council races combined.” Money begets money, it seems.

Overturn Citizens United at the Court. In April 2016, the Atlantic published a piece that advocated “a long process of smaller, incremental steps” to overturn Citizens United at the Court a la the gun rights and marriage equality fights of yore. This was notably before Justices Kavanaugh and Gorsuch—both staunch First Amendment advocates—joined the court. Asked about the likelihood of finding 5 votes on the court to overturn Citizens United in the next decade or so, Texas Solicitor General Kyle Hawkins said, “I don’t see that happening. The current Justices have demonstrated a strong commitment to the First Amendment’s fundamental free speech guarantees. We’re not likely to see a majority dilute the Constitution’s protection of core political speech.”

Pass a constitutional amendment. Democrats in the House and Senate have introduced an amendment to supercede the Court’s reliance on the First Amendment. You can read it here. But as Chris Gober, former general counsel at the National Republican Senatorial Committee and president of the Gober Group, offered, “a constitutional amendment overturning the decision would not significantly reduce the role of money in politics or cure the other perceived ills of our nation’s campaign-finance system.” As he points out, “the reality is that we saw a greater increase in total election spending from 2000 to 2008 (36 percent) than we did from 2008 to 2016 (12 percent)…[and] business corporations and labor unions are each responsible for less than 6 percent of the total funds contributed to super PACs.”  So for those looking for big, structural reforms to political campaigns, “you had better look beyond Citizens United to find your peace,” he says. 

Link to full article here.