Robert Bennett: Citizens United had an impact in Wisconsin recall

Ever since it was rendered, the Citizens United decision by the Supreme Court has been hammered by commentators who lean left. They say it has tilted the money balance in politics irretrievably in favor of corporations and right wing fat cats and cite it as the ultimate evil every time there are concerns raised about the impact of money in politics. This constant drumbeat of attack has produced significant disapproval of Citizens United and the court that rendered it, so Democrats bring it up whenever they can, believing that it will help position them as the party of purity when it comes to campaign spending.

They are using that line now, after the Wisconsin recall election. They insist that the only reason they lost was because Citizens United had made it possible for the Republicans to carpet-bomb the state with money. A compelling analysis by a former University of Utah law Professor shows that that is not so.

In an article printed in the Wall Street Journal, Michael W. McConnell — a Federal Circuit Court Judge after he left Utah, and now a professor of law at Stanford — writes, "Citizens United did have an important effect on the Wisconsin election. But the effect was almost exactly the opposite of what many pundits imply."

Many don't know that Citizens United not only validated the free speech rights of those who organize themselves in a corporate structure; it did the same thing for those who organize themselves in a labor union. But McConnell does.

He says, "Labor unions poured money into the state to recall Mr. Walker," and documents how the unions themselves spent millions in that effort. Then he says, "Little or none of these independent expenditures endorsing a candidate would have been legal under federal law before Citizens United. By contrast, the large spenders on behalf of Mr. Walker were mostly individuals."

What's the difference? "(Individual) donations have nothing to do with Citizens United. Individuals have been free to make unlimited independent expenditures in support of candidates since the Supreme Court case of Buckley v. Valeo (1976). I have seen no published reports of any corporate expenditures on behalf of Mr. Walker."

He readily acknowledges that there probably were some cases where some corporate money found its way into some of the PACS, but concludes, "For the most part, though, Mr. Walker's direct, big-ticket support came from sources that have been lawful for decades."

So, the reason the impact of Citizens United in Wisconsin was "exactly the opposite of what most pundits imply" is that unions took maximum advantage of it but Republicans didn't. McConnell rightly observes, "Without that decision so demonized by the left, Mr. Barrett (Walker's opponent) would have been at even more of a financial disadvantage. Speaking generally, Citizens United is likely to benefit Democrats more than Republicans."

I expect that that will be true in November. Unions have always been very aggressive in their advocacy of Democratic candidates, and Citizens United has given them added firepower. Corporations, on the other hand, have always been more reluctant to endorse a single party. As McConnell observes — and as I have seen, first hand — "corporate contributions tend to split more evenly between the two parties, largely neutralizing their effect." That is unlikely to change.

So, when someone insists that money is ruining the system and blames it all on Citizens United and the Supreme Court, remember that those who contribute are exercising First Amendment rights that go all the way back to George Washington, a rich Virginia planter who used his money to get himself elected.

Robert Bennett, former U.S. Senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah's Hinckley Institute of Politics.