How Will They Justify Gutting the First Amendment Now?

Liberals were outraged by the Citizens United Ruling that struck down restrictions on independent campaign expenditures. The Supreme Court ruling would allow corporations to buy the election outcomes they wanted, they said. Never mind that I, at least, never heard a good argument for why Congress had the power to regulate this speech. And can we please dispose of that canard that “money does not equal speech”? That’s like saying money does not equal food on the table. And it was the effect of the actual speech purchased by the money that liberals were concerned about, so implicitly even they admitted that money functionally does equal speech. They feared the outcome, so they were more than willing to persuade themselves that their tortured logic was just commonsense.

But what about that outcome? Presumably the Super PAC money favors Romney. According to a July Boston Globe analysis Republican leaning Super PACs had raised three times as much money as Democratic leaning Super PACS. The same month the Daily Beast, quoted David Axelrod as saying that his top two concerns going into this election were ” Europe and super PACs.” And in late August Mother Jones reported that “Conservative super-PACs dominated their Democratic rivals in the latest round of fundraising.”

However that money does not seem to be translating into clear electoral success. Real Clear Politics’ Poll of Polls, tracking a group of seven national polls over the period of 9/12 – 9/20 shows them averaging a 3.5 percentage point lead for Barack Obama. None of those polls shows Romney in the lead,* and three of them show Obama’s lead as outside the margin of error. Nate Silver, at the 538 blog, gives Obama a 76% chance at winning re-election. And at Intrade Obama shares are going for $6.97, while Romney shares are going for $3.04. If all that conservative Super PAC money is helping Romney at all, it seems at best just to be keeping him afloat.

OK, but the presidency isn’t everything. What about the Republicans’ efforts to take over the Senate? There have been reports that, despairing of a Romney win, the Super PACS have shifted more of their efforts to congressional races. But just yesterday Nate Silver put forth a gloomy forecast for the GOP, arguing that “[p]olls show key races shifting decisively toward the Democrats, with the Republican position deteriorating almost by the day.” This isn’t just the Todd Akin problem in Missouri. In three states where the Democratic incumbent has retired, Wisconsin, Virginia, and Connecticut, Republicans had high hopes of picking up seats. In Wisconsin, Republican (and former gov) Tommy Thompson has fallen into a tie with his opponent. In Virginia and Connecticutt, the Republican candidates (George Allen and Linda McMahan, respectively) are trailing. In Massachusetts, a seat the Republicans needed to hold, incumbent Scott Brown has fallen behind his Democratic challenger. And in Florida, where Republicans hoped to defeat the Democratic incumbent, their candidate is now trailing by 14 points.** So the Super PAC money doesn’t appear likely to create big Republican congressional victories, either. Contrary to predictions, money is not buying these elections.

Liberals tend not to understand advertising as well as they think they do. They tend to see it as swaying people independently of the quality of the product being advertised. (They aren’t fooled, of course, but most people are.) It’s probably true that a good ad campaign can create first time buyers for a new product, but it can’t bring people back to a product they’ve tried and disliked. I have a friend in the advertising business who told me some years back that one of the major beer companies had done a $400 million ad campaign the year before…and not achieved any increase in their market share.

You have to have a good product to sell, and the evidence suggests that there are a lot of Americans who don’t like the Republican product. Conservative Super PACS can advertise all they want, but they’re not selling an unknown product to first-time buyers. Even though Mitt’s a first-time presidential nominee, he’s not representing a new product to the public (we all know Tea Party preferences by now), there is real information about him that advertising can’t obliterate, and his packaging is just godawful. If ever there was a presidential candidate who looked like a “Generic Brand” can of soup, it’s Mitt Romney.***

This doesn’t mean money is irrelevant; there’s no winning without it. But more money does not translate directly into one-to-win wins. This is especially true, it seems, for self-funded candidates. In fact it’s possible Republicans have a built-in disadvantage in their corporate money advantage–the public may tend to see it as confirmation that Republicans are just in the hip pocket of big business and react negatively.

Can we all please just stop worrying now about Citizens United, and get back to appreciating our First Amendment freedoms?

*Gallup does show the candidates tied, but while it has the largest sample size by far, it is polling registered voters. By contrast, Pew, with the second largest sample size is polling likely voters and showing Obama by +8. Make of that what you will.

**When donors pulled their support from Todd Akin in response to his claim that real rape does not result in pregnancy, many folks assumed the support would come back when the furor died down, because the Republicans desperately needed to re-take that seat to have a chance at regaining control of the Senate. The money hasn’t come back, leaving many people puzzled. I think the struggles in other states explains why–at this point retaking control of the Senate may be a lost hope, so support needs to go to the best candidates, those who both have a chance of winning and don’t reflect so badly on your party.
***Romney is the Warren Harding of our era. He just looks so damn presidential. Harding, however, had the luxury of running in an era where candidates didn’t have to put themselves out in the public view.

About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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20 Responses to How Will They Justify Gutting the First Amendment Now?

  1. lumbercartel says:

    If money doesn’t influence the outcome of elections, why are elected officials so totally deluded into thinking that it does, to the extent of spending something like 70% of their time in office chasing campaign contributions?

    Now as it happens, I agree that Citizens United was correctly decided on the merits (the process was something else again — if “judicial activism” ever needed a poster child, this was it.) That doesn’t mean that having billions of dollers spent on attempts to influence the government every year by one means or another is a good thing. I’m just not pretending the the problem is simple, nor that there are simple answers that can pass the Menken filter.

  2. Scott Hanley says:

    If Paul Ryan can look at the last Congressional Research Service report on tax cuts and growth rates and just say, “Well, the 2000’s would have been even worse without the Bush tax cuts,” then I can just say this would be an even bigger Democratic victory without the super Pacs. QED!

    More seriously, I’m intrigued that the benefits of more money seem to be so small-to-nonexistent down at the Senate and (perhaps) even the House level. I thought originally that the advertising advantage might not mean that much in swaying people’s preferences, but I was then thinking primarily of the presidential race. Then when it was pointed out that, downrace, an ad barrage could more thoroughly swamp a traditionally-funded opponent, I wondered if I should have worried more. Now I’m beginning to rethink my rethinking. I expect we’ll see a lot of research articles dealing with this issue over the next few years?

  3. Pink says:

    In these present days we are overwhelmed by talk and behavior that emphasizes class stratificaiton in our American society.

    Candidates are bringing attention to the classification of Americans in a number of ways. And, the idea that money is speech emphasizes the idea of a class society

    Speefch should be equal with mine no more than yours; so, the buzz-saw that money is speech exemplifies that our American society is getting to be more of a class system than most of us ever thought.

    Allowing private funds to be spent this way on election campaigns is not a good move.

  4. pierrecorneille says:

    If all that conservative Super PAC money is helping Romney at all, it seems at best just to be keeping him afloat.
    This doesn’t mean money is irrelevant; there’s no winning without it. But more money does not translate directly into one-to-win wins.

    I think this is true and is why money is important in campaigns. I’ll also suggest that sometimes money might make more of a difference than others. I tend to see this as an unfortunate but perhaps unavoidable consequence of living with the freedom of speech guarantees that permit me to blog my heart’s content about American politicians without having any reasonable fear that government’s coming after me (unless I’m designated an enemy combatant….then watch out!).

    I’ve been for a while opposed to McCain-Feingold style of speech/spending restrictions for some time now. I do so for at least two reasons. First is the first amendment reasons.

    The second is my suspicion that such restrictions actually enhance the role of wealth: the better funded campaigns or candidates who can afford the legal council to ensure they meet compliance rules, to exploit loopholes, or when necessary to defer criminal/civil action under such laws until well after the election (after which, presumably, they’ll pay a fine, although I don’t know what specific penalties these laws provided or how robustly they would’ve been enforced) . Meanwhile, the shoestring campaigns or insurgent movements within major parties would have to worry about dotting all the i’s and crossing t’s just to make sure they’re not removed from the ballot for a technical violation of the laws while having so much more red tape to ensure that what funding they can raise is legit.

  5. James Hanley says:

    Pierre, I think you’re on target with your third paragraph. I would add that incumbents have–almost by definition–as well-developed fundraising apparatus and network that challengers normally won’t have. Explicit constraints on amounts that can be raised/spent can favor those who will have an easier time raising that amount. E.g., to equal your lengthy list of $2,000 donors, I might not be able to get as many individual donors, but might be able to get some $10,000 donors.

  6. James Hanley says:

    Speech should be equal with mine no more than yours;

    Start yourself a damn blog then, or I’ll have to shut down mine! And you can’t have either more or fewer readers than I do.

    Seriously, though, how will you enforce that equal speech rule? Will you subsidize the speech efforts of those who are less effective, or will you tell others that they’re not allowed to speak as much as they want to?

  7. Pink says:

    That’s not my point. I know that money has an effect. What kind of crazy talk sez it doesn’t?

    If I’m 6’8″ and could have beaten Joe Louis and Mohamen Ali in the ring at the same time, people would sit up and listen to me. If you’re credentialed in your specific field and I’m just me, you would speak much louder than ever I could in your area. That’s not hard to figure out. And, the same is true of money. If I’ve got a billion and you’ve only got a thousand, I can out talk you while you’re just clearing your throat. Money talks!!

    The point is that it presents a clear and present danger to our form of democracy allowing big bucks to buy our politicians. Try to get an appointment to speak to Senator Levin or to Senator Stabenow. It’s gonna be tough unless you just donated $100,000.00 to their campaings.

    This is a matter of class. There’s nothing that I know of in our Constitution that denies us the power to develop a class system in our society. Fact is, we’ve got one building and pretty fast. Allowing big money to have unlimited speech while remaining annonymous seems pretty dangerous to me.

    I think the decision needs to be revisited.

    Ever read Gary Nash?

  8. James Hanley says:

    The point is that it presents a clear and present danger to our form of democracy allowing big bucks to buy our politicians.

    Well, that’s the real question now, isn’t it? I thought my post was addressing that very issue. But instead of addressing my post, you write a response as though I hadn’t written anything at all.

  9. Matty says:

    This is a matter of class. There’s nothing that I know of in our Constitution that denies us the power to develop a class system in our society. Fact is, we’ve got one building and pretty fast.

    I love the idea that class is a new thing in the US, was the place not founded by what were in effect landed gentry?

  10. pierrecorneille says:


    I wouldn’t want to be too dismissive of what you’re saying, even though I disagree. I do see your point that freedom of speech does not mean as much in the political realm if we accept that money empowers the voices of some to outweigh those of others. I can also, in the abstract, imagine a situation in which some attempt at bringing to parity, or perhaps lessening the divide, might prove empowering for more marginal and underrepresented voices. In other words, I think freedom of speech can in some ways mean different things and that there are tradeoffs in adopting one (such as my near-absolutist view, which enables or accepts, even if I don’t like, corporations’ and other entities’ decisions to pool money together for a cause) over another (which appears, if I’m reading you correctly, to be one that favors, say, speech by humans qua humans over speech by corporate or other organizational entities).

    Still, I think we run into problems when it comes to practicality. McCain-Feingold did not stop the swift boat attacks in 2004, for example, even if a case could be made that they violated the spirit of that law. And pre-McCain-Feingold, I’ve heard (i.e, I don’t have evidence) that the Green Party in some states suffered from Democrats’ use of court injunctions and petition challenges that kept them off the ballot, and I imagine that then existing regulations on campaigns probably contributed to the success of those challenges. When it comes to the Greens, my point is that it’s the intricacies of the electoral regulations that ultimately benefit those who have the funds to interpret, challenge, and evade them and postpone their enforcement.

    My main point is, I don’t want to be glib even while disagreeing with you. James documents how money doesn’t appear to be helping Romney, but I still suspect that access to money qua campaign donations determines a lot when it comes to political power. I think it’s a problem, although James might disagree with me on the severity, pervasiveness, or existence of the problem. I’m not sure what a workable solution is, however, and I can’t endorse the type of line-drawing necessary to determine what is or is not acceptable speech based on how it’s funded.

  11. James Hanley says:

    This is a matter of class. There’s nothing that I know of in our Constitution that denies us the power to develop a class system in our society. Fact is, we’ve got one building and pretty fast.

    “No title of nobility shall be granted by the United State.”. Article 1, section 9.

  12. Lancifer says:

    I find it illuminating (and amusing) that most of the people opposed to the Citizens United ruling put their faith in allowing the government to decide who gets to spend how much to say what.

    Yeah, I can’t think of any problems with that model.

  13. Troublesome Frog says:

    We see this in products all the time. A flashy new product comes out with a slick ad campaign and trends for a while. Then people realize it wasn’t actually that great and it disappears. It’s easy to turn that sort of marketing success into an election to city council but harder to keep it going for a year long presidential campaign.

    Remember Meg Whitman in California? My favorite tweet after the California Republican Primary: Meg Whitman: GOP primary win, item condition new, $81,000,000. YOU HAVE BOUGHT THIS ITEM. But all that cash did her no good in the general election against a well known and politically experienced candidate.

    As I see it, the problem isn’t how effective advertising the is. The problem is how effective politicians think it is. If the politician I’m lobbying believes that ads are effective, then ads are a currency I can use to purchase his loyalty.

  14. Lancifer says:

    Troublesome Frog,

    Good point. The amount of time politicians spend raising money certainly indicates that they think having more gives them an advantage.

  15. Matty says:

    Try to get an appointment to speak to Senator Levin or to Senator Stabenow. It’s gonna be tough unless you just donated $100,000.00 to their campaings.

    I see a difference between advertising for and meeting, could they be regulated separately? Try this for a thought experiment.

    1. Each Senator shall be required to hold at least one ‘voters surgery’ a week of at least eight hours.
    2.These sessions must be advertised a week before with no pre-booking allowed.
    3.Access to the Senator at these times will be on a first come first served basis and for no more that 30 minutes.
    4. Outside of voters surgery only members of the Senators own staff, civil service and other legislators shall be permitted to meet a Senator during office hours.

    This no doubt has it’s own problems, practical and legal but I hope it at least illustrates that if you want to regulate who is meeting your elected representatives there are more direct ways to do that than dealing with who can pay for adverts.

  16. Lancifer says:


    Sounds very egalitarian. But if I’m a Senator/Rep I should probably have the prerogative to set appointments the way I think will maximize my effectiveness, not just give the appearance of fairness. Seeing a random, tiny subset of constituents is probably not the way to do that.

    Don’t forget that these folks have a staff that meets with people and screens for the boss. If they aren’t corrupt this can be a very effective way to prioritize the time of the elected official.

  17. James Hanley says:

    Obviously money is important. A candidate has to get his/her message out, and the candidate who doesn’t raise enough money to do that is dead. But there’s a–typical–decline in marginal benefit after a certain point. That point is probably unspecifiable a prior for any particular campaign, so a candidate normally can’t know when to let up (unless they’re in a safe seat and have gazillions banked, perhaps). But simply outspending the other side isn’t sufficient. Your message has to be something they like. And as T-Frog suggests, the longer the campaign, the more voters will get a good sense of what your message is, and whether they like it or not.

    An important role of money for newcomers is just getting name recognition. Incumbents begin with a huge advantage, normally, just due to name recognition alone. One study I read concluded that challengers who couldn’t match the incumbent’s spending had little chance of winning, but those who could exceed the incumbent’s spending had about a 50-50 chance of winning. So money keeps you in the game–it doesn’t ensure victory.

    I like Matty’s idea. And of course all Representatives and Senators do hold townhall meetings. And their offices get the local papers, and they track the letters, phone calls, and emails. That all doesn’t guarantee me the kind of influence a big donor can get, for sure, but it does mean that they really are in touch with their constituents. The image of the totally out of touch politician is largely mythological.

    But, that said, it is true that big donors have more influence, and a politician’s constituents frequently don’t know how he/she voted, giving the pol operational room to satisfy big donors in ways that don’t necessarily benefit their constituents. But there was no golden past where the average citizen had as much influence as the elite within the constituency.

  18. lumbercartel says:

    And of course all Representatives and Senators do hold townhall meetings

    Well, sort of. Assuming you can find out far enough in advance to actually go (not a problem for those with connections), there’s the little matter that the ones I’ve actually been to are heavily stage-managed. Those that weren’t learned a lesson in 2009, and those that still didn’t get the hint got a reminder in Tucson.

  19. Matty says:

    Lance, you are right that my proposal would be ineffective, that’s one of the practical problems I alluded to but I have to quibble with the ‘random, tiny subset’ bit.

    1. In this context I would think random implies no connection between ‘desire to lobby a Senator’ and ‘chance of seeing a Senator’, but with open access there is a pretty clear connection, the more you care about your issue the more willing you will be to take a day off and get to the meeting place early. In fact without screening I suspect that the number of people raising issue x with the Senator would be better correlated with the level of public interest in the issue than if access is restricted to who the Senator wants to meet.

    2. Tiny, well 16 people is a tiny number compared to the number of voters but the relevant comparison is to the number of visitors a Senator sees in a typical week without this system, I don’t know but I doubt this is that much higher. What’s more the eight hours was a minimum, if there are grounds for more or longer sessions these could be added, provided the rules about public advertising and open access were respected.

    I’m a bit surprised that in a discussion of the the 1st Amendment no one picked up that my restrictions on who can speak to a Senator outside fixed times might run straight into ‘ the right of the people.. to petition the government’

  20. James Hanley says:

    I’m a bit surprised that in a discussion of the the 1st Amendment no one picked up that my restrictions on who can speak to a Senator outside fixed times might run straight into ‘ the right of the people.. to petition the government’

    Well, there’s always email.

    Curiously, I’m not aware of any Supreme Court cases dealing with the right to petition government. It seems to be something that is so well established by virtue of the need to keep constituents happy enough to vote for you–constituent service is a huge activity in any congressmember’s office, which requires that they’re listening to petitions–that it’s actually ever been in any danger. It might be the least necessary statement in the Bill of Rights.

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