It is almost two years since the Supreme Court handed down Citizens United. In that time, the opinion has come to serve as a popular shorthand for all that is wrong with the campaign finance system. With the emergence of Super PACs as the latest vehicle for sidestepping contribution limitations, the overwhelming temptation is to attribute this latest money pit to the Supreme Court’s contributions to this woeful area of law. For example, just today, the New York Times intones, “A $5 million check from Sheldon Adelson underscores how a Supreme Court ruling has made it possible for a wealthy individual to influence an election.”
From the Times, one does not necessarily expect further legal analysis – and one does not get it. The article goes on to claim only the following: “The last-minute injection underscores how last year’s landmark Supreme Court ruling on campaign finance has made it possible for a wealthy individual to influence an election. Mr. Adelson’s contribution to the super PAC is 1,000 times the $5,000 he could legally give directly to Mr. Gingrich’s campaign this year.”
The simple concern is that this compressing of campaign finance law misrepresents the problematic holding of Citizens United, a case that addressed the use of corporate and union treasury funds for electioneering activity. Nothing in BCRA at issue in Citizens United would have addressed Mr. Adelson’s outpouring of money into the latest permutation of third-party control over campaign activities. At best, Citizens United provided indirect legal cover for Mr. Adelson by reaffirming the long-standing (from Buckley v. Valeo) narrow definition of corruption to cordon off all uncoordinated uses of money that cannot be deemed in sufficient proximity to candidates or political parties.