Citizens United at 10: Did The Supreme Court Screw With Campaign Finance Reform?

While there have been a number of controversial Supreme Court cases over the years, few have caused such controversy in modern times as Citizens United v. Federal Election Commission (FEC), or simply "Citizens United." This ordeal started when a non-profit, Citizens United, wanted to air a film critical of Hillary Clinton during the 2008 elections. Before airing the movie, Citizens United approached the FEC. The FEC denied the request, arguing that such a film would be in violation of §203 of the Bipartisan Campaign Reform, better known as the McCain-Feingold Act. This Section prohibited an "electioneering communication" 60 days prior to a general election of 30 days prior to a primary election. The U.S. District Court of the District of Columbia ruled in favor of the FEC. The case made its way to the Supreme Court, at which point the U.S. Supreme Court ruled 5-4 on January 21, 2010 that the Free Speech clause of the First Amendment prohibits the restriction of independent expenditures allocated towards political communications by corporations (including non-profit ones), labor unions, and other associations. Since then, Citizens United has become a symbol on the Left for everything that is wrong with political campaigning in the United States.

Before jumping into the impact of Citizens United, it's worth noting that Citizens United did not allow for corporate donations to campaigns. The Tillman Act of 1907 still bans those donations. Citizens United reversed a ban on independent expenditures from corporations that was ruled on in Austin v. Michigan Chamber of Commerce. Also, individuals also can spend an unlimited amount of money on political campaigns (Buckley v. Valeo). Citizens United did not impact laws regarding individual or corporate contributions to political campaigns.

That being said, I have to wonder whether Citizens United truly messed with political campaigning in the United States. This is a tricky question to answer not only because there have not been enough election cycles to make more conclusive statements, but also because of the nature of these political action committees [PAC], which are known as Super PACs. This is why I look at the influence money has on politics more generally.

Yes, it is true that with the cap removed, the independent expenditures from these Super PACs has increased notably. I also understand that campaigns are won with media, and media requires money. Without money, you de facto could not run for office. The average cost of winning a seat in the House of Representatives in 2016 was $1.6 million, and it's a safe assumption that the vast majority of U.S. citizens do not have that sort of cash lying around. It is also true that as of the 2016 election, more than 90 percent of candidates that outspent their opponents won.

However, correlation is not the same thing as causation. It is generally found that "political expenditures are rarely pivotal in determining election outcomes (Barutt and Schoenfeld, 2016)." Incumbents tend not to benefit from spending more money (ibid.). When it comes to challengers, the historical evidence has been less clear (Levitt, 1994) because incumbents already have name recognition and free media. Whether a challenger can upend that incumbency can be tricky, but if successfully done, the challenger gets a greater bang for their buck. Television advertisements are shown to have a strong, but short-lived and easily forgotten effect on voting preferences (Gerber et al., 2011). Advertising seems to have its best effects when the candidate is not already well-known and if it is less predetermined by partisan lines. In short, that spending works if voters are not previously aware of a candidate, after which the campaign spending has significant marginal rates of return.

It is not simply the limited influence that money has on an election that has me skeptical about Citizens United being a poor ruling for a few reasons.

1. According to Stanford political scientist Adam Bonica, money has less of an effect in our increasingly partisan society because people are more likely to vote along party lines. 
2. It makes more sense for a corporation to spend money on lobbyists to influence politicians already in office than it does to contribute money indirectly towards political communications during elections. 
3. Removing limits on independent political speech is a good thing, not just from a First Amendment standpoint. It has allowed for a greater diversity of candidates that we would not have otherwise been aware of, as can be observed both from the 2016 Republican primary and the 2020 Democratic primary. 
4. The desire for political power is strong enough that even if there were a reversal of Citizens United, those with money would simply find other means to channel the political funds. After all, that is how the CIO-PAC, which is the first political action committee started up by the labor union AFL-CIO, was founded as a workaround in light of the Tillman Act. 
5. If the issue is with corporations in election media and political campaigning, removing Citizens United as an ultimate solution is odd. Who owns MSNBC? Comcast. Who owns Fox News? Fox Corporation. Who owns the Washington Post? Jeff Bezos, the CEO of Amazon. Going back to the previous point, if a corporation wants to spend in an election, they will find a way. But to reiterate, money only has so much influence in an election.
6. While corporations are more than happy to lobby, they are unwilling to be particularly partisan. Why? Self-preservation. No good ever came from alienating large swathes of your customer base. 
7. If money were that large of an influence in elections, candidates such as Ross Perot and Michael Bloomberg would have won by now (I don't count Donald Trump into that consideration since Hillary Clinton outspent him in the 2016 elections), but most probably have not because that sort of blatant spending by an individual is not alluring. Self-funded candidates do not have a great track record. 
8. There has been a modest decline in House incumbents that get re-elected since Citizens United.  

There has definitely been a shift in political campaigning since Citizens United. Whether it has been good or bad for politics in the United States is still not clear to me, especially given the limited influence of money on election campaigning. It is not as if there were some heyday in the past where elections were completely free of corruption. I also am not prepared to say that Citizens United has been a boon to elections either. In any case, it won't stop partisans from making the usual arguments about Citizens United.