Jacob Sullum

As Democrats head for what promises to be a midterm election fiasco of historic proportions, a pre-emptive excuse has begun to circulate: It's all because of Citizens United. Team Donkey fans claim the Jan. 21 decision, in which the Supreme Court overturned restrictions on the political speech of corporations, triggered a flood of negative advertising by what President Obama calls "shadowy groups with harmless-sounding names."

If independent groups favoring Team Elephant have a spending advantage so far, it's not because of recent changes in election law. Most of the advertising that irks Democrats was legal before Citizens United, and the plausible prospect of taking over one or both houses of Congress has energized Republicans, while Democrats are dispirited by the unpopularity of their party's policies.

In his weekly radio address on Saturday, President Obama complained about "special interests using front groups with misleading names" who are saying mean things about Democrats on TV, a development he attributed to Citizens United. Yet similar complaints have been heard from both major parties in every recent election cycle.

Last week, The New York Times reported that "outside groups supporting Republican candidates in House and Senate races across the country have been swamping their Democratic-leaning counterparts on television." The paper worried that "a relatively small cadre of deep-pocketed donors, unknown to the general public, is shaping the battle for Congress in the early going."

The Times said "Democratic officials" believed "corporate interests, newly emboldened by regulatory changes, are trying to "buy the election." In short, the spending patterns "seem to be a fulfillment of Democrats' worst fears after the Supreme Court's ruling in the Citizens United case."

Except that, as the Times conceded, "it is not clear ... whether it is actually an influx of new corporate money unleashed by the Citizens United decision that is driving the spending chasm." Other factors -- "notably, a political environment that favors Republicans" -- might be at work. In fact, most of the spending cited in the story was by rich individuals or by groups organized under Section 527 of the Internal Revenue Code, both of which were legal before Citizens United.

Further undermining the thesis that the decision explains the Republicans' spending edge, the Times noted that "corporations have so far mostly chosen not to take advantage of the Citizens United ruling to directly sponsor campaign ads." And while they might be "funneling more money into campaigns through some of these independent groups," corporations "had the right to make such contributions before the ruling."


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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