Monday, January 21, 2013

Citizens United: The Good, The Bad, and the Mostly Ugly

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

Unregulated Speech: From an ad sponsored by the Now or Never PAC

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.