THE BLOG
01/22/2013 12:44 pm ET | Updated Mar 22, 2013

Happy Birthday Citizen's United, the Most Naïve -- or Cynical -- Supreme Court Decision of the Past Century

Much is being made of the failure of big money to buy many political races during this last election. In fact, big donors are being ridiculed because their candidate purchases were so wasted.

This failure is being used to undermine campaign finance reform, primarily the effort to overturn the Supreme Court's decision to permit virtually unlimited independent spending in Citizen's United, decided three years ago today, January 21, 2010.

If the wealthy want to waste their money, the latest argument goes, let 'em.

While 2012 wasn't as successful for the mega-contributors as 2010, should we conclude that money doesn't influence politics?

Hardly.

Example #1: Republican Presidential Nominee Mitt Romney

But wait, didn't Romney lose? No, he was a winner, then a loser. And money was critical both times.

Romney was no sure thing to capture the Republican nomination. First, Newt Gingrich defeated Romney in South Carolina and then moved on to Florida, where Romney outspent him...by a lot.

Politico reported that Romney was able to spend over $15 million on Florida airwaves compared to $3.4 million spent by Gingrich. A study by the Wesleyan Media Project revealed that Romney and his Super Pac supporters, especially Restore Our Future, aired some 13,000 ads in Florida; Gingrich less than 300.

Thus, 5 times greater spending purchased nearly 50 times as much advertising. Aren't economies of scale great, when you have the money for them?

After vanquishing the Gingrich threat in Florida, Romney was challenged by Rick Santorum. But after a few Santorum victories, Romney aimed his cash at him, and Santorum couldn't compete. The closest Santorum could get to Romney in media spending was in Michigan, where Romney outspent him by a 3:1 margin. Elsewhere, Romney outspent Santorum by a wider margin, as much as 14:1 in Arizona.

The result, victory for Romney in the race for the Republican nomination.

But in the general election, although he raised 3 times as much PAC money as Obama, his overall donations were only 10% higher. That just wasn't enough.

The decisive impact of big money is hardly limited to the national level and the biggest offices.

Example #2: Clackamas County, outside Portland, Oregon.

There, two extremely conservative candidates swept to upset victories for the Board of Commissioners, after outspending their opponents several fold. Is this a conservative, suburban county? Not really. President Barack Obama carried it by 51 to 47 percent. Money made the difference.

So, 2012 didn't render political contributions meaningless. As bad as the situation is nationally, we may see money targeted at the local level in the future--where it could have a larger...and more long term...impact.

Campaign funding isn't just about winning, of course. It's about governing.

But, Mitch, didn't Freakonomics tell us that a candidate usually raises more money because s/he is perceived as the winner. The money merely ratifies what's going to happen.

Well, sometimes this is correct. But not all the time. It would be interesting to know how Gingrich would have done with a level playing field.

And this also ignores another insidious fact: the candidates themselves don't act as if Freakonomics is correct. It would be great if the standard candidate response to their contributors was: "Contribute. Don't contribute. I don't care. I'm going to win anyway."

Know any candidate that takes this position? I don't. So even if money isn't always determining election results (just some of the time), it is still having the same effect as if it were: candidates feel even more beholden to the kind of large contributors that Citizen's United has permitted.

And Republican operative Karl Rove thinks that money makes a difference. He is now advising the Republican Party to move its convention to June to facilitate earlier general election fundraising and spending. He knows that Obama outspent Romney over the summer and framed him in the swing states. If only Romney had raised even more money.....

Our campaign finance structure, aggravated by Citizen's United, allows donors to bend the rules in their favor (no competitive bidding for federal government purchases of pharmaceuticals?). It allows these companies and industries to escape the rigor of market competition. It enables them to shift risks and losses to the American taxpayer and consumer.

After all, among the largest and most politically-influential donors are the industries that have done the most damage to the American economy: the banks responsible for the mortgage meltdown, the oil industry with its interest in America fighting wars in the middle east, the pharmaceutical and health companies that impact America's soaring health care costs, and the agribusiness giants that benefit from subsidies justified as supporting small farmers.

As a business owner who doesn't have millions of dollars of disposable income, it appears obvious that money buys influence. I am not alone. More than 2000 business leaders who have signed on to the American Sustainable Business Council's Business for Democracy petition calling for the reversal of the Citizens United decision (www.asbcouncil.org). And New Voice of Business (http://www.newvoiceofbusiness.org) has made campaign finance one of its two big issues of the year.

As opposed to the U.S. Chamber of Commerce which spent over $32 million to influence campaigns (and whose donors aren't disclosed), and then proceeds to lobby elected officials for legislation beneficial to its members.

At the end of the day, do you really think that Sheldon Adelson and his $15 million+ in contributions would not have any greater influence in a Gingrich White House, than say....you, dear reader?

Well, if you think not, the Supreme Court apparently agrees with you.

Or maybe just the opposite and this was their intention all along.

So, is the Citizens United case the most naive Supreme Court decision in a century...or the most cynical?

We may not be near the ideal system--where every American would receive a tax credit for their political contributions, up to, say, $250.00; those who paid less than that $250 in taxes would receive a voucher up to the cap; and there would be no other money in the system. No other private contributions, direct or independent. The tax credit would only be recognized the year of the election, so campaigns would be shorter. And you and Bill Gates could have the same impact on an election

But even if we can't get there, for the sake of American democracy, Citizens United needs to be overturned.