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Thursday, February 25, 2016

Buying Elections

Many Democrats this season are complaining heavily about the 2010 Supreme Court decision in Citizens United v. FEC, which held that the government could not prevent private citizens, organizations, or corporations from spending money to advocate the election or defeat of a candidate for public office.  The decision applies only to "independent expenditures."  That is, a private party may spend money to advocate the election or defeat of a candidate, but may be restricted in its ability to donate directly to a candidate's campaign.

The Court's has always barred any restrictions on campaign contributions except for the purpose of preventing corruption or the appearance of corruption. Prior decisions reasoned that giving an unlimited amount directly to a candidate or campaign could be seen as corruption in that the contributor would likely want some special treatment in exchange for such massive support.  For this reason, the Court has permitted restrictions on the amount of money any individual may give a candidate.  It has also allowed blanket restrictions on corporations or foreign citizens from making direct contributions.

The Citizens United case tried to go a step further.  The Federal Election Commission was attempting to enforce a statutory ban on any corporate expenditure that expressly advocates the election or defeat of a candidate within 30 days of any election, including Primary elections.  This law would disallow any movie, TV show, book, magazine, or pretty much any other media device to disseminate a message at any time during a Presidential campaign year, since primaries start in January and continue through most of the year until the November elections. The law made exceptions for newspapers and magazines to endorse candidates as long as they were regularly publish periodicals whose primary purpose was not the election or defeat of a candidate.  But such exceptions were statutory exceptions that could be removed by Congress at any time.  It did not recognize any Constitutional protection.

In this case, Citizens United wanted to disseminate a movie about Hillary Clinton that attacked her and clearly sent a message to viewers that she should not be elected President in 2008.  The group argued that it had a First Amendment right to advocate for the election or defeat of a candidate, despite the fact that it was using corporate funds to distribute its message.  The Court agreed and upheld the group's First Amendment rights.

To do otherwise would have been terribly problematic.  It would have had to hold that any organization or group that incorporated must surrender its First Amendment rights.  In other words, the New York Times or the Washington Post would not be protected by the First Amendment because they were corporations.  Corporate book publishers and movie producers would also be unprotected. Such a result seemed to be a radical departure from past First Amendment protections.

Of course, the decision also created an exception that big money interests could abuse terribly. Almost immediately, large well funded independent organizations were created, which could receive unlimited amounts of money from virtually any source to spend on a candidate.  The organization could not coordinate directly with the campaign, but could spend massive amounts on advertising with the express goal of electing or defeating a candidate.

Democrats seem to be most outraged by this activity, out of a fear that Republicans would benefit more from large money contributions.  In 2008, before Citizens United was decided, Barack Obama benefited from around $89 million spent on his behalf and about $81 million spent opposing him. Much if this was spent during the primaries so much of the opposition came from Democrats.  Much of this was PAC money raised within the contribution restrictions in place at the time.  His opponent John McCain (who has strongly opposed independent expenditures himself) saw about $29 million spent on his behalf and $19 million in opposition.

This was a drop in the bucket compared to the estimated $745 million raised by the Obama Campaign directly in 2008.  The McCain campaign raised less than $400 million total on the primary and general elections, although McCain did not face a lengthy and expensive primary challenge as did Obama.

In 2012, after Citizens United lifted restrictions on independent expenditures, President Obama had only about $50 million spent to advocate his reelection, while about $334 million was spent in opposition.  Republican opponent Mitt Romney saw about $91 million spent on his behalf and about $95 million spent opposing his election.  But again, independent expenditures dwarfed spending by the campaign itself.  Obama raised and spent just over $1.1 Billion, while Romney spent just over $1 Billion.

All of these numbers come from the Center for Responsive Politics at

So while independent expenditures are growing and seem to favor Republican candidates, they are no match for direct campaign fundraising.  Further, candidates find independent expenditures less effective since they cannot coordinate with the campaign.  This can result in duplicate spending, spending not focused on the campaign's strategy, or even spending that conflicts with the campaign's strategy.

Some have argued that while independent expenditures are less effective in the general election when there is lots of other money anyway, it might exert more influence during the primaries, especially early in the process when candidates cannot raise as much in large amounts from contributors.  If this year is any indication though, that theory is dead wrong.  Jeb Bush raised about $25 million in direct contributions and benefited from another $118 million in independent expenditures on his behalf. His results were so bad that he has already suspended his campaign after three primaries.  By comparison, the front runner Donald Trump has spent an estimated $12 million and benefited from another $4 million from outside groups to take the lead in the election.  Clearly, money has not had the greatest impact on this election.

For many months now, I have predicted that Bush would slowly gain acceptance and eventually overtake and defeat Trump.  I based this largely on Bush's prowess in raising and spending funds, as well as his experienced and able campaign staff's ability to use those resources effectively.  Clearly that was wrong.

Bush's failure and Trump's success do prove one thing though.  Money does not buy votes.  Voters can be overwhelmed with all sorts of advertising and encouragement to support a particular candidate. But people are perfectly capable of ignoring all that and choosing who they like despite the massive marketing campaign.  Money does not buy votes.  It buys the candidate an opportunity to present his or her message to the voters.  Whether the voters choose to accept that message and support that candidate is still a very big leap.  It is that leap that tells me that tells me that Citizens United is not the threat to Democracy that many Democrats believe.

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