Does anyone remember Citizens United?
That was the US Supreme Court case, decided in 2010, that held that both corporations and labor unions had free speech rights that were protected by the First Amendment, and that the federal government therefore could not restrict the amount of money they spent on promulgating their political opinions in the course of elections.
Many on the left of the American political spectrum disagreed vehemently with the decision. The editorial page of The New York Times, for example, under the heading “The Court’s Blow to Democracy,” called the decision “disastrous,” “radical,” “shameless,” “deeply wrong,” “wrongheaded,” “nonsensical,” “wrong on the law,” and “dangerous.”
In sum, the Grey Lady was not pleased.
President Obama, in the course of his State of the Union address delivered just a week after the opinion had been handed down, quite bluntly informed those Justices sitting in the House chamber before him that they had made one big mistake:
“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”
That’s what Obama said in 2010. (It is entirely unclear why the president thought “a bill”—that is, a piece of ordinary federal legislation—could change the constitutional rights of corporations and unions. One would have thought that an amendment to the Constitution would be required to infringe on existing constitutional rights, but that is another matter.)
Whatever floodgates were opened by Citizens United certainly did not deprive Obama of the ability to compete with Mitt Romney in the fundraising contest that was part of the 2012 presidential election.
In fact, Obama raised $784 million in that campaign, while Mr. Romney accumulated only $467 million. Obama substantially exceeded Mr. Romney in the fundraising department, and he of course went on to win re-election.
So, it’s hard to see what substantial “wrong” was perpetrated in Citizens United, when we see the actual results that immediately followed upon the announcement of the decision.
And then, of course, we come to the election of 2016.
According to the Bloomberg news service, Hillary ClintonHillary Diane Rodham ClintonClinton lawyer's indictment reveals 'bag of tricks' Attorney charged in Durham investigation pleads not guilty Attorney indicted on charge of lying to FBI as part of Durham investigation MORE (who, interestingly, was the subject of the critical, unflattering film that precipitated the Citizens United litigation) raised $867 million for her presidential campaign; Donald TrumpDonald TrumpKinzinger says Trump 'winning' because so many Republicans 'have remained silent' Our remote warfare counterterrorism strategy is more risk than reward Far-right rally draws small crowd, large police presence at Capitol MORE raised $453 million. Super-PACs supporting Mrs. Clinton raised $201 million, while those supporting Mr. Trump raised $59 million.
So, notwithstanding the supposedly nefarious effects of Citizens United, the Democratic candidate was able to raise very close to twice what the Republican candidate raised. If one adds in the amounts given to the Super-PACs, the Democrats actually raised more than twice the amount raised by the Republicans.
Despite having a very substantial advantage in campaign funding, the Democratic candidate, as we all know, lost to the Republican candidate. If Citizens United opened “the floodgates,” the end result seems to have been to drown the very candidate who was supposed to float to victory on a sea of cash; this may prove that there is a limit to what spending can accomplish in a national election.
And if Obama was worried that the Citizens United decision meant that American elections would be decided by “America’s most powerful interests” rather than “the American people,” it looks very much as if he was worried over nothing.
These days, we almost never hear about Citizens United in political rhetoric or in the reporting of major news outlets. A decision that, only a few years ago, was thought to deliver a crushing, perhaps fatal, blow to American democracy has been largely forgotten.
Instead, one of the most prominent themes in the analysis of this year’s election seems to be captured in the phrase “voter suppression.”
Quite a few Democrats seem to believe that not a few Republicans engaged in that unsavory enterprise. Indeed, voter suppression seems to be as frightening a specter, as dangerous to our free and fair elections, as opening “the floodgates for special interests” was in 2010.
Of course, those who publicly fret about voter suppression are often among the very first to underline the fact that Clinton won a larger share of the popular vote than Trump.
So, however troubling voter suppression might be in theory, it did not prevent Clinton from winning a popular majority.
The notion of voter suppression really does not subsist very comfortably alongside popular majorities in favor of the candidate whose voters are allegedly being suppressed. The question then arises whether, like Citizens United, voter suppression will relatively quickly be replaced with still another bête noire that imperils the future of democracy. I suppose we will have to wait and see.
But, while we wait, we can perhaps all take comfort in the resilience of our system of government; reports of its imminent demise seem to be overblown.
David E. Weisberg is a semi-retired attorney and a member of the NYS Bar. He currently resides in Cary, NC and has published pieces on the Social Science Research Network and The Times of Israel.
The views expressed by Contributors are their own and are not the views of The Hill.