Could Citizens United be a Paper Tiger?

October 18, 2010

Is it possible that the Supreme Court’s ruling in Citizens United v. Federal Election Commission was all bark, no bite?  It may be too early to tell, but at least in the race for Virginia’s 2nd congressional district, the ruling has yet to make a discernible impact.

Citizens United, handed down last January, invalidated portions of the Bipartisan Campaign Reform Act of 2002 which regulated so-called “electioneering” communications on First Amendment grounds. The reaction to the court’s decision was swift and sharply divided. The Wall Street Journal celebrated the ruling as a victory for free speech, writing, “[i]n a season of marauding government, the Constitution rides to the rescue one more time.” The conservative Cato Institute lauded the ruling, opining that it was a recognition of the principle that “equalizing speech is never a government interest.” On the other end of the spectrum, the New York Times openly lamented the decision, saying it marked a return to “the robber baron era of the 19th century.” People for the American Way went so far as to call for a constitutional amendment overturning the decision.

Seemingly, the only consensus among the commentators was that the decision was a landmark ruling, sure to have a significant impact on foregoing elections. However, eight months later, those impacts have yet to be felt in the tight race for Virginia’s 2nd Congressional District seat.

“None, zero, zilch, zip, nada,” said Jason Miyares, campaign manager for Republican challenger Scott Rigell and a William and Mary School of Law Alum. “[Citizens United] has not had any effect on how we run our campaign, whatsoever.”

Miyares said that existing federal limits on direct contributions, which were not affected by the Supreme Court’s ruling, have a much greater effect on races for federal office. Federal law caps individual direct contributions to candidates at $2,400 per individual per election. A contribution to any Political Action Committee which donates to that candidate counts towards the individual’s total contribution. Those caps, Miyares said, have a much greater effect on the day-to-day operation of a campaign for federal office than the “soft money” limits invalidated by Citizen’s United. While candidates for state office in Virginia are not subject to the federal bans, Virginia candidates for federal office are.

“Just recently, we had a business that wanted to donate bottled water to the campaign, and we had to say no,” he said. “If Scott Rigell was running for the Virginia House of Delegates, we could have taken it, but he’s running for Congress.”

Miyares said that the best gauge of the decision’s impact would be seen in the “holds,” i.e. ad time purchased in advance, bought by committees or corporations for ad time during the election. Miyares said that at this point, he is not aware of a single corporation or political action committee that has taken the opportunity to purchase ad time in the district.

“I can see the holds, and there aren’t any names I recognize,” he said.

While the effects of the decision may not be definitively ascertainable for years, early research seems to support the proposition that initial reaction to Citizens United may have been overblown. In his February, 2010 article Citizens United and Political Outcomes, University of Wisconsin-Madison political science professor John Coleman concluded that neither political behavior nor political outcomes differed greatly in states that did not restrict business involvement in campaigns prior to the Citizens United decision from those that did.

Coleman noted that prior to the decision roughly half the of the individual states within the U.S., including Virginia, did not restrict business involvement in state campaigns the way federal law did. He found that while Republicans were slightly more likely to be elected governor in states without restrictions, they were not more likely to have control of state legislatures. He found no indication that states which “lean” Republican were less likely to restrict business involvement in state political campaigns. He also found no correlation between the existence of such restrictions and tax or regulatory policy.

Miyares speculated that there may be several reasons for the lack of impact. He noted that the case was only recently handed down, and there is still substantial uncertainty surrounding what its ultimate impact will be. Contributing to the uncertainty, he said, is the DISCLOSE Act, which was recently passed by the House of Representatives but as of yet has not gained approval in the Senate. The Act was proposed in reaction to Citizens United, and places new requirements on the sponsors of political advertising. If enacted, the Act would place limits on political advertising by foreign corporations and mandate that the heads of sponsor companies appear in their ads. Miyares said that the potential impact of the Act was an unknown quantity, and until the state of the law is clear businesses will be hesitant to take enter the fray.

“If there’s one thing that corporations hate, it’s uncertainty,” he said. “Corporations face all kinds of uncertainty, from production costs to labor issues. Now, [in light of Citizen’s United] they face uncertainty about their campaign contributions.”

Ultimately, Miyares thinks the case’s import was overblown at the time it was rendered. His impression is that it hasn’t had any practical effect on the second district race, or on federal races in Virginia this year in general.

The reelection campaign for Glenn Nye, the 2nd District Democratic incumbent, did not return requests for comment for this post. However, there is some indication that Democrats in general are concerned about the decision’s impacts. One Democratic campaign official, who requested anonymity as a condition of commenting for this post, wrote in an email correspondence that while the decision has not had a direct impact on his campaign, “it is a cloud that looms over our head.” This official wrote that he believes the decision has only directly affected a few specific campaigns. However, he believes that its broader implications can be seen in the heightened emphasis candidates now have to place on fund raising.

“New groups that do not have to coordinate with campaigns can purchase unlimited ad buys on radio, TV, or print,” he wrote. “Individual candidates have to spend more time dialing-for-dollars or hosting fundraisers in order to be able to compete with the possibility of unlimited resources being used on behalf of an opponent.”

As a result, he wrote that legislators would be forced to spend more time fundraising, and less time serving their constituents.

“Constituents will continue to be disenfranchised with the electoral system until lasting reforms in campaign finance are enacted,” he wrote.

Alex MacDonald is a second-year student at William & Mary Law School.

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