Three years ago this week, the
Supreme Court handed down its decision in Citizens
United. Two election cycles later, it is worth pausing to consider the
consequences of that momentous decision for electioneering specifically and the
representative process more generally. As both a scholar of congressional
elections and as an active observer of the recently concluded Montana Senate
race—which saw more than 90,000 television advertisements aired over a fivemonth period—I have a unique perspective to share. The
decision written by Justice Kennedy was momentous in how it transformed the
political landscape, but the effects are not all bad as some contend.
First, the good news. Generally
speaking, campaigns are about disseminating information to a generally
disinterested and disengaged electorate. Money spent on advertising provides
information to voters, and the more information voters receive, the more likely
they are to participate in the political process. Many voters express disgust
with the sheer amount of advertising in an election, but the simple fact of the
matter remains that competitive elections with lots of spending generate more
voter interest and involvement. One of the benefits of campaigning in the world
of Citizens United is there are more
avenues for information to reach the voter because anyone can—and has—form a
group to raise and spend money to influence elections. For example, in the
Montana Senate race alone, more than $50 million was spent during the campaign
cycle. Of that amount, less than half was spent by Democratic and Republican
candidates. The rest was spent by political parties and various 501s. The
result of all that information? A rich and thick information environment. More
voters cast ballots in the Senate race than in the presidential race (not a
single ad aired for either Mitt Romney or Barack Obama in Montana),
demonstrating that more information reduces the barrier to participation and
helps voters make decisions.
More money equals more political
information, but is all that information beneficial to democratic process? One
of the very clear downsides of the Citizens
United decision is increased access to the campaign process has led to a
lack of control by the candidates, political parties, and citizens who have to live
with the results after Election day. Money does matter in elections, especially
when one side has superior financial resources and employs them in an otherwise
low information environment election. Consider the case of California’s 35th
district. Because of California’s primary law that allows the top two vote
getters to move onto the general election, two Democratic candidates faced off
in the general election: incumbent Congressman Joe Baca and State Senator
Gloria Negrette McLeod. One of the most
important voting cues is party identification, but in this instance that cue
did not differentiate the candidates. Joe Baca, the incumbent, was widely
anticipated to win the election and yet, at the very last moment, Mayor
Bloomberg’s Independence USA PAC dropped more than $3.3
million into the race on mailers and television attacking Baca. Why?
Because Baca was supported by the NRA and voted against gun control measures. When
voters were paying attention they received a considerable information boost
from all of this money and a sure bet for Baca was turned into a loss. Citizens United increases the ability to
use money to influence elections—especially by outside groups.
The most troubling aspect of Citizens United is not that labor unions
and corporations can spend money on electioneering and issue advocacy, as some
suggest. It is the complete and utter lack of transparency in the Citizens United world. This is certainly
ironic, given the fact that Justice Anthony Kennedy himself wrote in his
decision that “prompt disclosure of expenditures can provide shareholders and
citizens with the information needed to hold corporations and elected officials
accountable for their positions and supporters”. The fact of the matter is we,
the voters, have no idea who the groups peddling information to us are and we
don’t know which individuals support them. Congress and the Federal Election
Commission have been unable and unwilling to act by establishing disclosure
rules for the sundry 501s engaged in electioneering activities outside of the
60 day window of before an election. Citizens can find out how much money is
spent on television or radio advertising if they care to visit those stations
in person by requesting the political file—a daunting task in Montana, where
stations are spread across thousands of miles. Of course, there’s still all the
money spent on grassroots organization, Internet advertising, and phone calls
outside of that sixty day window—how much and by whom, we may never know. Some groups, like the Sunlight Foundation, are doing yeoman's work tracking as much of the dark money as they can, but there's only so much even they can do with their resources to track down everything.
Although attorney Jim Bopp’s
assertion in a recent
Frontline special about dark money that most voters don’t care about where
that money is coming from is likely true, the consequences of anonymous speech
for political discourse are troubling and should cause voters to take notice.
Anonymity breeds bad behavior. Hiding behind the veil of secrecy, groups and
individuals are more likely to be more negative and play more fast and loose
with the facts than if they were held responsible for their actions. We saw it
time and again during this election cycle. Groups set up shop with a P.O. Box,
launch a bunch of scurrilous attacks, and then disappear. Fact of the matter is
these groups are accountable to no one, unlike the candidates and political
parties who must put the pieces back together and try to govern after elections.
The stealthy nature of these organizations make it less likely for candidates
and parties to take risks and compromise for fear they will be brutally
assaulted out of nowhere in the next election cycle.
No Transparency? More Negative and More Nasty Ads
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| Unregulated Speech: From an ad sponsored by the Now or Never PAC |
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| Nasty speech: From an Internet ad sponsored by the American Bridge to the 21st Century |
At the end of the day, Citizens United—as a decision—opened the
floodgates to more money and more information in the political process. Whether
that information is good and beneficial to democratic discourse is an open
question, however, when juxtaposed against the very fact that much of the
information flooding the system is peddled by groups with no responsibility to
the political process or the hard task of governing in an environment that has
become increasingly fragmented and polarized—in large part because of the money raised and spent by these very groups. At the
end of the day, I live in a state where the Senate race was decided in part by
the millions of dollars raised and spent by outsiders who never met Jon Tester
or Denny Rehberg, and are not accountable to Montanans. In a state that is
suspicious and often resentful of the influence of outside interests, this
should be very troubling indeed.
