Spending and Amending: The Past and Future of Citizens United (Part One: Independent Spending Increase?)

The following post is adapted from my 2012 essay, “Spending and Amending: The Past and Future of Citizens United.” It evaluates four major predictions, identified in “Back to the Future? The Effects of Citizens United v. FEC in the 2010 Election,” by Peter L. Francia, that motivate would-be “reformers” of Citizens United. Taken together, these four predictions comprise the usual “case against Citizens United.” In this series of five posts, I evaluate each prediction and examine whether or not each was supported by data from the 2010 midterm elections. The fifth and final post draws conclusions from the data I have examined. You can read parts two, three, four, and five at these links.

Prediction 1:  Spending by independent groups would increase significantly. Before the ruling was announced, one campaign finance law expert predicted that if Citizens United prevailed, “[i]t will be no holds barred when it comes to independent expenditures.” President Obama also famously commented that the Citizens United ruling would, “open the floodgates for special interests to spend without limit in our elections.”

If the Supreme Court’s decision in Citizens United v. FEC were going to turn the campaign finance world on its head, one would expect the 2010 elections to indicate that independent groups were spending and advertising in greater numbers. To evaluate this proposition, Michael M. Franz of Bowdoin College compared spending by independent groups in 2010 and 2008. Franz found that “interest groups in 2010 increased their advertising totals over 2008 by 168 percent in House races and 44 percent in Senate races.” Independent groups ran significantly more ads in 2010 than they had in previous election years, especially in races for House seats. Franz characterizes this as a “dramatic spike in airings,” but he notes that “on the other hand, levels of advertising increased from other sponsors.”

These findings likely indicate that the increase in airings was not caused by Citizens United alone, since advertising by candidates, which was unaffected by the case, increased as well. In fact, the candidate advertising spike was a mirror image of the independent group spike, as candidates for the House of Representatives “aired 26 percent more ads over 2008 and Senate candidates boosted their ad totals by 61 percent.” This may indicate that independent groups strategically spent more in House races, where candidates were spending less of their own funds on advertising, and spent less in the Senate, where candidates were spending well above 2008 levels. Therefore, it is too early to guess how much of the increase in 2010 was caused by Citizens United and how much was caused by what Francia characterizes as “overall inflation in campaign spending.”

Because advertising increased across the board, Franz notes that “a better metric to evaluate outside spending totals…is to look at the proportion of all pro-candidate ads sponsored by interest groups.” He finds a “mixed bag for a Citizens United effect.” Independent groups accounted for a greater proportion of all advertising in 2010 than they had in any election since 2002, and the proportion actually doubled between 2008 and 2010, going from 6 percent to 12 percent. On the other hand, however, independent groups accounted for 17 percent of all advertising as recently as 2000. So, while independent groups did advertise more in 2010 than they had done recently, airings did not reach unprecedented levels by any means.

Still, it is important to keep the influence of independent spending in perspective. Franz notes that, even with the jump in advertising in House races, candidates for the House of Representatives still accounted for nearly 9 out of 10 advertisements, and an even higher proportion of express advocacy advertisements (those that expressly advocate the election or defeat of a candidate for office). It seems unlikely that widespread electoral chaos could spring out of this environment, where independent advertising can be effective at the margin in close-fought races, but is still vastly outgunned nationwide.

Furthermore, the fact remains that most independent advertising still doesn’t use express advocacy. About 2 out of 3 advertisements in the House and 9 out of 10 in the Senate still do not do so. While an advertising campaign can certainly still be influential without explicitly endorsing a candidate, conventional wisdom says it is at least somewhat less effective. Even in this new post-Citizens United world, groups still largely lack an incentive to engage in direct campaigning. The legal environment still makes that course slightly more risky, discouraging independent groups from making explicit endorsements in their ads.

It must be acknowledged that spending and advertising by independent groups witnessed a significant increase in 2010, compared with 2008 and 2006. However, as Franz notes, there are several reasons why this fact alone may not be cause for alarm. Most independent advertising still avoids express advocacy, and “the overwhelming bulk of spending in campaigns still came from candidates and party organizations.”

Further, every election year is different. For example, 2010 followed the advent of Tea Party activism, and voter enthusiasm was remarkably high, especially among Republicans. Spending is also influenced by donors’ optimism. In 2006, Democratic donors believed they had a very good chance to win the majority in the House of Representatives away from Republicans, which translated to higher spending levels by left-leaning groups. The opposite was the case in 2010, which also featured an abnormal number of closely-contested races and a unique anti-incumbent sentiment.

Based on the 2010 election, it is clear that the recent inflationary trend in campaign spending continued, and was likely accelerated by the new regulatory environment created by Citizens United. Although spending increased most steeply among independent groups, indicating a Citizens United effect, there was also a spike in spending and advertising across the board. However, while independent spending spiked, it failed to reach unprecedented levels. Additionally, because some of the spending increase is attributable to other factors, such as the nature of the election itself, the types of races being fought, and the mood of the nation, it is hard to know how typical a particular election cycle really is. It looks like Citizens United has increased independent spending, but it’s still too early to tell how much the decision is responsible for this potential increase.

Most importantly, we cannot conclude, based on this data alone, that independent spending will be destructive to the democratic integrity of elections in the future. It is far from obvious that developing spending patterns are normatively bad, nor that they demand correction by constitutional amendment. So this prediction seems to be vindicated, but the question, “so what?” remains.

Next topic:  Will corporations drown out the voice of the people in future elections?