As the New York Times reports, even before the Citizens United decision, 26 states didn’t restrict independent corporate (and, I take it, union) speech about state-level political candidates. This means two things:
(1) We should take with a grain of salt claims that Citizens United will substantially transfigure American political life. Unless there’s some reason to think that elections in, say, Idaho, Indiana, or Maryland (three states that didn’t restrict independent corporate speech) are much more dominated by corporate or union speech than elections on Montana, Ohio, or Pennsylvania (three states that did have such restrictions), we shouldn’t lightly assume that shifting the other 24 states and federal elections to the Indiana model from the Ohio model would change things dramatically.
Of course, federal elections are in some measure different, because Congress is more important to corporations and unions (and others) than the states. But plenty of corporations and unions have special interests in particular states, or are even predominantly present just in one state or a few states. If political life in the corporate/union-speech-permitting states is basically much the same as political life in the corporate/union-speech-restricting states, there’s little reason to think that allowing such speech at the federal level would dramatically affect (as opposed to just moderately affecting) federal campaigns.
(2) What I just said, though, is based on my tentative sense of things; naturally, it would be great to have more real data on it. Fortunately, the 26-to-24-state split would provide a dataset that could let scholars figure out just how much of an important the allowing of corporate and union speech in political campaigns has had, on the spending on those campaigns and perhaps even on legislative decisionmaking. I asked some election law scholars about this, and didn’t get any pointers to such studies — but if any of you do have pointers to such studies, I’d love to see them. And of course such studies could also be done retroactively; it would be interesting to see what data scholars can extract out of this natural experiment.
None of this bears, of course, on moral, constitutional, or political theory arguments that focus on the theoretical right and wrong of restricting or protecting such speech. But to the extent that the arguments have included empirical claims about the likely effect of protecting corporate and union speech about candidates, it seems to me that the states’ experience would provide a helpful perspective.
Chris Travers says:
I am not convinced of this. After all, every state I have lived in has had a higher minimum wage than the federal government and has had all sorts of workplace regulations. Indeed it seems to me that the most interesting and important day-to-day concerns of a business are regulated at the state level.
For some large businesses, the federal government is extremely important because of things like patent law, copyright law, and free trade treaties. However, I am not convinced that nudging these one way or another is more important than influencing workplace law in each state.
Am I missing something important?
February 1, 2010, 1:55 pmSoronel Haetir says:
I think people are getting hung up on the word ‘corporation’ because they think of the massive behemoths like GE or Microsoft and such like when the word is mentioned. Groups like NRA, ACLU, or even Citizens United just don’t come to mind for most folks.
For the companies whose business is business I see a continued attempt to remain somewhat distant from the process of politics while remaining very close to the politicians — of all stripes –themselves. People joke about the Senator from MBNA but it would look very much worse if it were more true. Worse yet would be uncovering such an attempt that failed. That would leave a company open to all sorts of nastiness. Except in very rare cases it’s much more in a companies interest to talk with whoever gets elected rather than attempt to directly elect a hand picked person. There are just too many companies that could play such games.
For the companies whose business is advocacy I do think there will be a general increase in electioneering communication. I certainly hope so anyway. Getting everyone’s ideas, good, bad, mediocre and just plain weird out on the table is a good thing.
The unions I’m not so sure about, but I’m also not sure that unions directly have enough money to engage in such communication anyway. I don’t see the courts striking down the limits on what money unions can use for their non-representative activities any time soon.
February 1, 2010, 2:14 pmMark N. says:
Oddly enough, the resident DailyKos legal analyst argued pretty much the same thing (in contrast to most DailyKos posters).
February 1, 2010, 2:18 pmbpbatista says:
According to Obama, we should all be amazed that the Republic managed to survive over 200 years without McCain-Feingold and bans on corporate political expenditures.
My guess is that we will find a way to muddle through after Citizens United.
February 1, 2010, 2:37 pmEric Rasmusen says:
Good point. Even more obvious is that as I understand it the Supreme Court decision only strikes down a bill that is about 7 years old. Does anybody else have trouble remembering the bad old days of massive federal campaign spending by corporations, back before 2000, when corporations are supposed to have dominated politicians and scared them into providing billions of dollars via things like bailouts, special loans, and pork barrel projects?
February 1, 2010, 2:41 pmArthurKirkland says:
I am confident we will. People who like corporations and dislike unions might not like the journey as much as they expect, though.
February 1, 2010, 2:41 pmDavid M. Nieporent says:
Glenn Greenwald also defended Citizens United, though not on the same grounds being discussed in this post.
February 1, 2010, 2:59 pmfinman says:
Unfortunately, it wouldn’t really be a natural experiment because states endogenously chose whether to allow corporate speech or not. Since the states weren’t randomly assigned to allow speech or not, one can’t simply compare the ex post corruption between the two groups of states.
February 1, 2010, 3:24 pmJohnF says:
What I find disheartening is that many–perhaps most–people seem to think that the effect of corporate free speech on politics, society, or culture is in any way all relevant to the Constitutional inquiry. That is, if allowing corporations to speak has a terrible effect, then the Constitution should be read to allow Congress to make some law abridging that right, whereas, only if there would be no harmful effect, then corporations could be “given” the right to speak.
February 1, 2010, 3:37 pmkrs says:
54 amicus briefs in the case… was this not mentioned?
February 1, 2010, 3:48 pmfinman says:
My mistake–EV is right, this would constitute a natural experiment. I was under the impression that the heterogeneity had to arise exogenously to be a natural experiment, but apparently that’s not the case. The fact that the heterogeneity is endogenous would make it much harder to draw causal inferences, though.
February 1, 2010, 3:59 pmloki13 says:
I have extremely mixed feelings about Citizens United. Allow me to post my overall thoughts:
1. As a baseline, I am a First Amendment zealot. I believe more speech is always better.
2. In addition, I think that political speech is at the core of the First Amendment.
3. However, I think that the particular issue of money in politics is one that is the most pernicious, and, perhaps, damaging to our Republic that we currently have. Our legislators have become, for vast majorities of their time, little more than glorified fund-raisers. And the outsize influence of money on modern political campaigns is damaging to the political health of our nation.
4. In addition, the way that corporations have evolved (I am talking about large public corporations) means that there is little, or no, accountability for the way that they spend their money influencing politics. This is a failure of corporate governance (or, more broadly, an agency problem), but it impacts our political system.
5. I think that the issue of “corporate rights” (or the issue of the rights of people that have organized into forms, such as corporations, partnerships, LLCs, LLPs etc.) is more complicated than partisans on either side would have you believe. Of course GE has no right to an abortion or to vote; on the other hand, would we allow the government to take GE’s property without due process/just compensation or prevent GE from bringing suit? I think that part of the problem is that with rights come responsibilities, and that certain corporate forms allow the exercise of rights without the concomitant responsibilities placed upon the actual decision makers (in fact, that is the advantage of the form).
6. I think the whole “the sky is falling” worries are overdone; on the other hand, I think the blithe dismissal that there is nothing wrong with our current political landscape, and that CU is not further evidence that reform will be nigh-impossible, is also mistaken. In short, for the time being, it would be best to do what we can (disclosure, because sunlight is a great disinfectant) and begin seriously thinking about the outsize influence of money on our political system. There has to be a balance somewhere- people (and associations of people) need to be able to get their message out in order to change the status quo; on the other hand, we are dangerously close to a system where our legislators spend 90% of their time raising funds and 10% of their time voting for the measures and earmarks that they know will get them funding.
7. Finally, this shouldn’t be a partisan issue. Good governance for our nation, and free speech, are non-partisan. And this shouldn’t be about corporations or unions. There should be dialogue about the type of nation we want to live in. More and more, we are getting what we deserve.
February 1, 2010, 4:07 pmegd says:
If you think that there should be some sort of balance between free speech (on one hand) and good governance (on the other), then you most assuredly are not a “First Amendment zealot.”
February 1, 2010, 4:23 pmAndrew LYnch says:
Oddly enough I did conduct such a study a couple of years ago for my MA Economics Thesis on how contribution limits impact campaign fundraising in gubernatoral elections. I collected a panel dataset of several decades of state contribution limits (corporat limits, union limits, individual limits, etc.). For anyone who reads it, my apologies. It was my first paper and rather bland (and wordsy).
http://edt.missouri.edu/Summer2007/Thesis/LynchA-080707-T7908/
To sum it up, limiting corporate and union contributions hurts incumbents (lowers total funds raised relative to challengers) while limiting individual contributions hurts challengers. This is true looking just at dummy variables (whether there are any limits or not) or in magnitude (the size of the limit). This affects Republicans just as much as Democrats (no one seems to rely more on individuals or on corporations). What I could not do, however, was tie those contribution limits to any election outcomes. This was something that I did not include in the paper.
I think Eugene is right. There is little evidence that in states where unlimited cash can be contributed it impacts election outcomes. If anyone is feeling industrious they can look through my reference section and find a dozen peer reviewed publications that look at this in detail (i.e. state legislatures, impacts on policies).
February 1, 2010, 4:29 pmChris Travers says:
I agree with this. However, I also think that the law in question was too broad.
The basic issue is this: While I can see that an argument can be made that we have to prevent corporations from monopolizing the marketplace of ideas relative to elections (just as we generally seek to prevent them from monopolizing other market places), the law in question was a prohibition on political speech by corporations during certain dates.
Also I would add that the impact was disproportionately affecting smaller corporations.
I think a law which would meet this compelling interest, and would be narrowly tailored to meet such an interest would be Constitutional. Such a law was not what was before the court. Certainly printing pamphlets, putting information up on a corporate web site, etc. should be protected.
February 1, 2010, 4:41 pmLongwalker says:
Unlimited cash may or may not have an impact on an election. It depends on what message is being promoted with the unlimited cash.
Remember all that money spend to promote the Edsel?
Candidates or policies, like soap or cars, must appeal to the voter.
The only difference that unlimited cash provides is to get the message out. No amount of cash can elect a poor candidate or influence public opinon regarding a bad policy. Voters act like consumers.
They will hear more about candidate A or about brand X because of the extra money being spent but that does not translate into votes or purchases unless candidate A and/or brand X as perceived as worthy by the voter/consumer.
February 1, 2010, 4:51 pmloki13 says:
Wow. Good to see that you took the time out to post such an insightful reply to my post. Snark is easy; thought is hard.
For example, I’m a First Amendment zealot. I also believe that perjury laws are constitutional in federal trials. In addition, I think that my (and most people’s) conception of the First Amendment is much broader than the original expected application of it; which is ironic considering that the most stalwart defenders of CU tend to be conservatives (and originalists). Anyway, it’s an amzing testament to your reading comprehension that you came away from that post with no actual understanding of the point I was trying to make.
I’m not sure whether CU is correct or incorrect; depending on how you characterize the case it could go either way. What I do know is that there is a problem in American politics that is only getting worse, and I would like people to come up with solutions for it that didn’t involve curtailing speech.
February 1, 2010, 5:10 pmloki13 says:
Chris Travers-
I agree with your sentiments. I think the issue with the legislation is that there is a problem, and that it was a simple, easy-to-understand, bad solution to the problem.
The problem the way money is undermining our political system.
Why? Well, part of the reason is the incredibly high cost of running a political campaign. Part of the reason is the overly large impact that the legislature has on us today (more bang for your buck). Part of the reason is the differences in the concentration in wealth in general compared to earlier times, and, more specifically, due to the use of corporate forms (specifically public companies and LLCs). Part of the reason is poor public governance (corporations may now do anything- general purpose, most shareholders have no practical voting interest so they are run by managers with little oversight by BOD). But even if there was absolutely no corporate cash, there would still be issues with our governance.
It’s a hard problem. I’m relatively agnostic about how correct CU was. I’m more interested in the after effects- for example, we’ve already seen the Court begin to move away from the intermediate / Central Hudson test… we’ll see how this affects Corporate speech in other areas. I’m just waiting to see how it affects the SEC and enforcement actions.
February 1, 2010, 5:18 pmChris Travers says:
loki13:
If the law in question applied only to over-the-air (and not from satellite) tv/radio, only to direct electioneering-oriented advertising (rather than advertising for electioneering products like the movie in question), etc. then I would agree it it would be narrowly scoped.
However, the law as written prohibited way too many things.
What harm comes to our nation of GE prints out election advertising and pays people to distribute them door to door?
What harm comes to our nation of a company publishes on its web site concerns over the effect of the election of a specific candidate?
What harm comes to our nation if, in the course of a press conference regarding a business issue, if a corporate PR agent connects a concern to a pending election?
Do you disagree that strict scrutiny should be the standard for this sort of thing?
February 1, 2010, 5:26 pmloki13 says:
Chris Travers-
As I wrote before, I’m not sure. Here’s what I know-
1. If it was an individual, then yes, black letter strict scrutiny.
2. The airwaves open up a whole ‘nother can of worms (scarce resource, government approval). My belief is that with the intertubez, cable TV, etc. that line of cases is near its end and will likely open up to strict scrutiny, although with the Justice’s distate for profanity, you never know.
3. I think the issue of the corporate form is a tougher one than either Kennedy or Stevens acknowledges. There is a middle ground between “Corporations have full rights” and “Corporations have only the rights we chose to give them.” But honestly, I don’t what that is. I am closer to Kennedy than to Stevens, however.
4. In the end, I think this might be a case where bad oral advocacy destroyed one side. In the first hearing, I believe the government argued that they could ban a book – bad call.
So yeah, this is why the case has me a little out of sorts. There is a problem. It will get worse. I think the law in question was a bad one*- but I also think the ruling (and the possible after effects, not limited to political speech) will unsettle this area of the laew in profound and bad ways.
*I honestly don’t know whether it’s unconstitutional. I don’t think, under the original expected application of the 1st, it was. But I think under modern jurisprudence, it could be. Then again, modern jurisprudence has paid some attention to the form of the speaker. OTOH, this law went further, and in a core protected area, than previous laws. So… *shrug*…. 5 votes, so it’s the law of the land.
February 1, 2010, 5:39 pmAdam B. says:
Yeah,
February 1, 2010, 5:43 pmhe’sI’m pretty strongly pro-speech on much that pertains to the campaign finance world, though I’m likely more interested in Congressional action to cabin CU’s effects than some here. In particular, I’m strongly motivated by Zephyr Teachout’s recent research on the anti-corruption roots and structure of the Constitution, and believe that what the state has a compelling interest in regulating may be broader than the narrow quid pro quo focus of the CU court.EMB says:
Another difference is that in the federal government, the results in elections from just a few states can make the eventual difference in whether national legislation is passed (this is especially true for the presidency due to the electoral college, but matters in congress as well).
It seems like for a corporation that does business across the nation, this could make the expected return on investment much higher for trying to influence a few carefully selected races across the country.
February 1, 2010, 7:54 pmAdam B. says:
But ROI’s always going to be higher on lobbying than on persuading voters, isn’t it?
February 1, 2010, 8:22 pmElliot says:
It’s my impression Mccain Feingold would have prohibited the Tea Party folks from organizing and running ads prior to the recent decision. Are they now free to run whatever they choose? If so, get out the popcorn and settle back for a real show.
February 1, 2010, 8:37 pmloki13 says:
Adam B.,
But persuading voters and lobbying are part and parcel. For example-
(This is just a hypo, and I’m using ADM as a random corporation):
1. ADM lobbies Senator X. Tells Senator X-
“Support Farm Bill A and we’ll raise $Z in cash.” (Through ADM, their employees, and other coordinated interests).
2. ADM lobbies Senator X. Tells Senator X-
“Support Farm Bill A and we’ll raise $Z in cash, and we’ll also be featuring advertsing about the issue in your state of CornFed.
3. ADM lobbies Senator X. Tells Senator X-
“Support Farm Bill A OR we’ll raise $Z in cash for your opponents, and we’ll also spend a lot of money educating the voters in your area about your vote. Ahem.”
Note that Senator X’s main interest is in getting re-elected (let’s ignore altruism for now). In all three examples, the lobbying effect is increased by the ability of ADM to spend cash, both directly and indirectly. And in example 3, they can have a powerful impact without even spending money.
February 1, 2010, 8:42 pmOff Kilter says:
And that might be a big problem, Loki, if ADM were the only corporation around. But when the grocery lobby goes to Senator X and says, oppose farm bill A…things get more complicated, and harder for ADM to control.
February 1, 2010, 9:41 pmcookiemonsta says:
CU is about par for the course…it’s not the end of the world.
“Nowhere are all the means of political power so shamelessly purchasable as in America: administration, popular representation, courts, police and press” – Karl Kautsky (1902)
“The marketplace of ideas is not actually a place where items—or laws—are meant to be bought and sold” – Justice Stevens (2010)
February 2, 2010, 1:08 amuberVU - social comments says:
Social comments and analytics for this post…
This post was mentioned on Twitter by gabrielmalor: About Citizens United hysteria: At present 26 states do not restrict corporate spending in state elections. http://is.gd/7uNoj #tcot…
February 2, 2010, 2:30 amegd says:
I agree that most people (including the Supreme Court) have a very expansive view of the First Amendment. From a pro-liberty perspective, I don’t think this is a problem.
What you are advocating in your first post is some sort of balance between speech that is protected and the effect that the speech has on government actors. Then you want to empower those government actors to curtail the protected speech so that they aren’t corrupted anymore (or “we’re the last good politicians, everyone else is corrupt, so we need to keep them out of office”).
Empowering the government to limit speech in order to protect their own interests is the behavior that the First Amendment sought to prevent.
The cure for the current situation of money in politics isn’t more regulation, because regulation adds an air of legitimacy to government bribery. If Senator X receives $10,000 in donations from Company Y, most people don’t raise a stink because it’s within the rules. But if there weren’t such rules, people would be rightly suspicious of Senator X for receiving campaign funding from Company Y.
The cure is more free speech, more opportunities for those opposed to Senator X to point out where he is wrong, economically or socially. Curbing corporate spending on merely guarantees that those concerns aren’t heard, limiting the ability of voters to make a well-informed decision.
February 2, 2010, 11:07 amEMB says:
The problem is that ADM is already in a better position than the grocery lobby and is able to apply far more money to keeping X in office and getting A passed. And of course, once A is passed, ADM’s money and influence increases all the more and the grocery lobby’s decreases, making it even harder for them to oppose ADM on farm bill B next year.
February 2, 2010, 11:28 amChris Travers says:
I think preventing corruption is a compelling interest, don’t you?
To my mind, the law in question was just too broad.
And I thought preventing corruption was in the interest of every citizen, rather than in the interest of the government……
I don’t think that corporate spending should be entirely curbed.
I would suggest instead an “anti-trust law on the marketplace of ideas surrounding an election.”
In essence, I would like the following to be requirements of any violation:
1) A distorting impact. If you can’t prove that corporation X is causing a distorting impact, full protection.
2) Anti-competitive intent either individually or by collusion collusion. In other words, corporations can spend money on advertising as much as they want. What they can’t do is either individually or together is seek to prevent others from making their voices heard.
For example, if Shell Oil and Walmart want to buy up all the TV advertising around election time to push their candidates, that should be illegal. If they want to collude with other companies to create so much demand for advertising that election ads become prohibitive for one candidate or another, that should be illegal.
Although both of these are probably civilly actionable under anti-trust laws, I would not mind suggesting that criminal penalties should apply if the object of monopolization would be electioneering media.
February 2, 2010, 11:54 amConnecticut Lawyer says:
Loki wrote “Our legislators have become, for vast majorities of their time, little more than glorified fund-raisers.” The cure for this would be to repeal all campaign finance laws. That would have two effects. One, politicians could raise the bulk of what they need from a handful of wealthy supporters, instead of having to spend every afternoon on the phone, dialing for dollars. See, e.g., Stewart Moss’s support for George McGovern, 1972. Second, parties could much more readily raise large sums of money and be in a position to provide financial support to politicians in tune with that party’s politics. This could make politicians more responsive to the party and less in need of individual contributions, which I think would be a benefit, although you might disagree.
February 2, 2010, 12:59 pmloki13 says:
Well, sort of. It’s very hard for people who are used to modern ides to truly understand what the Constitution truly protects. For example, the secret ballot is a relatively modern innovation. The First Amendment was not considered very expansive until the 20th Century. So from a pure originalist stand point- maybe. But then you could look at what corporations did at the time of the founding… and so on.
I am sympathetic to the argument that limiting campaign money creates an incumbency bias. As I wrote before, the law as written was a bad solution to what is an undeniably bad problem. But I would feel a bit better if the people defending CU would at least acknowledge the problem, instead of believing that further money would “solve” it instead of exacerbate it.
A perfect example is above, when in reply to my ADM hyporthetical, someone responded that the grocery lobby would fight it. O RLY? Why? Why would they spend money to fight it? They don’t care how much the food costs- since they sell it for cost + profit (and they sell so many different things). They would much rather spend their money lobbying for things that enhance their bottom line. Other interests are too diffuse. Unfortunately, it’s a structural problem.
February 2, 2010, 1:12 pmDan Weber says:
It’s easy to lose sight of this in our modern times, but democracy isn’t freedom. If you ask me to choose between the two, I’ll choose the freedom 99 times out of 100.
February 2, 2010, 2:19 pmThe Volokh Conspiracy » Blog Archive » California Independent Spending For and Against Candidates: Unions, Indian Tribes, Individuals, and Corporations says:
[...] spending for or against candidates will increase relative to each other. As it happens, though, 26 states already allowed such speech even before Citizens United, so we have some data about what might [...]
February 4, 2010, 2:36 pmTweets that mention The Volokh Conspiracy » Blog Archive » Corporate Speech About Candidates: One Important Fact -- Topsy.com says:
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February 5, 2010, 9:03 amJim Warren says:
> 26 states didn’t restrict independent corporate (and, I take it, union) speech about state-level political candidates.
Wish Volokh had provided the list of those states. ??? Then – even though such corporate freedom is limited to supporting or opposing corporate-preferred local and state candidates – we could more easily see for ourselves if it seems to have had any or much impact.
February 5, 2010, 4:29 pmJim Warren says:
Woppps. Shoulda looked at the NYT article to which Volokh had linked, before posting my whine. –jim
February 5, 2010, 4:42 pm