Citizens United, More Myth Than Legend

Citizens United really wasn't that big a deal.

Bashing Citizens United for allegedly undamming a torrent of corporate money that is now flooding Republican campaign coffers is a popular sport amongst Democrats looking for something other than their own failures to blame for their impending electoral bloodbath. But, as is so often the case, the hyperbolic spin far outpaces the reality:

Why is Citizens United “the touchstone”? Mainly because news outlets such as the Times insist on portraying it that way, notwithstanding the evidence to the contrary:

“Interestingly, the legal changes directly wrought by the case have turned out to be quite subtle, according to campaign finance lawyers and political operatives. Instead, they said, the case has been more important for the psychological impact it had on the biggest donors.”

… According to the new, revised “story line” (who is it that comes up with these story lines, anyway?), Citizens United was not that big a deal in legal terms, even though critics of the decision from President Obama on down portrayed it as the end of our democracy. The problem is that some donors—possibly including corporations as well as wealthy individuals—mistakenly thought it was a big deal and increased their giving based on that erroneous impression.

… “Nevertheless, Fred Malek, a longtime Republican operative who is helping to lead fund-raising for the Republican Governors Association and is chairman of a new nonprofit advocacy group, American Action Network, said the ruling had seldom come up in his conversations with donors.

“‘I don’t find anybody who is contributing based on that ruling,’ he said. ‘People are contributing because they have deep reservations about the policies and direction of this Congress and this administration. That’s what’s bringing them in.'”

The attempted walkback by the Grey Lady is interesting in itself since it’s been a major contributor to the myth of Citizens United as the root of all evil this cycle. Having been forced to acknowledge that the decision didn’t have nearly the legal effect they’ve helped create the impression that it did, they now retreat to a redoubt that can never be empirically challenged. Convenient.

FILED UNDER: 2010 Election, Democracy, Law and the Courts, ,
Dodd Harris
About Dodd Harris
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He contributed over 650 pieces to OTB between May 2007 and September 2013. Follow him on Twitter @Amuk3.


  1. John Burgess says:

    But, but… ‘Malek’ is an Arab name. Arabs are foreigners. It must be the backdoor through which foreign money is being pumped into Republican coffers to influence the voting public!

    (I’m waiting for my ‘panic now’ order from the DNC and its affiliate NYT.)

  2. Tano says:

    “The attempted walkback by the Grey Lady is interesting in itself since it’s been a major contributor to the myth of Citizens United as the root of all evil this cycle.”

    Is “lie” to strong a word to characterize this sentence?
    Their reporting of this decision was about as “fair and balanced” as one could possibly hope for. Here is a link to their report which sought out the views of a wide range of scholars and other interested parties on the effects of the decision, including Eugene Volokh (fer goodness sakes!)

  3. wr says:

    Ooh, people who are spending millions to effect the election so that a new crop of corrupt Republicans will do their bidding never mention the supreme court decision that allowed this when writing their checks. That tells me the decision had no effect. Thanks, Dodd!

  4. HankP says:

    Well, if Fred “Jew Hunter” Malek says so, it’s good enough for me!

  5. Vast Variety says:

    While I reluctantly agree with the decision there is plenty of evidence out there showing the damage that has been caused by it this election cycle without disclosure laws strong enough to prevent gaming the system.

  6. Dodd says:

    Is “lie” to strong a word to characterize this sentence? Their reporting of this decision was about as “fair and balanced” as one could possibly hope for.

    Um, yeah, no. One forum on the topic does not “fair and balanced” make. No rational person could think Liptak’s lede from their news reporting is “fair and balanced”:

    “Overruling two important precedents about the First Amendment rights of corporations, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections.”

    There’s not even a pretense at it. And it didn’t stop there. Let’s review a few recent pieces from the Grey Lady to see how “fair and balanced” they’ve been…


    501(c)(4)… is the legal designation for the advocacy committees that are sucking in many millions of anonymous corporate dollars, making this the most secretive election cycle since the Watergate years…. Corporations got the power to pour anonymous money into elections from Supreme Court and Federal Election Commission decisions in the last two years, culminating in the Citizens United opinion earlier this year. The effect is drastic….


    The snapshot of early television spending would seem to be a fulfillment of Democrats’ worst fears after the Supreme Court’s ruling in the Citizens United case in January that lifted a ban on direct corporate spending on political campaigns.

    It is not clear, however, whether it is actually an influx of new corporate money unleashed by the Citizens United decision that is driving the spending chasm….

    First Monday:

    he most far-reaching example of the Roberts court’s pro-business bias was Citizens United v. Federal Election Commission. By a 5-to-4 vote, the conservative justices overturned a century of precedent to give corporations, along with labor unions, an unlimited right to spend money in politics.

    Last week:

    The Supreme Court’s Citizens United ruling early this year, which rejected corporate spending limits in elections, also paved the way for a flood of corporate money into this year’s campaigns.

    And, despite the retrenchment, they’re still at it right up to today:

    Take his [Thomas’] partial dissent in the Citizens United case, in which he joined the conservatives to give corporations an unlimited right to spend money in politics.

    Overturned important precedents. Watergate! Bitterly divided. Unleashed. Flood. Conservative justices overturned a century of precedent (false). Conservatives gave corps unlimited right to spend $.

    Yeah. That’s fair and balanced alright.

    Perhaps you should be a little more circumspect about slinging around accusations of lying.