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October 26, 2012

Leader of the PAC

Scott Walker’s opponent got most of the PAC money but lost anyway. The Supreme Court’s Citizens United decision, it turns out, represents a double-edged sword. By Michael W. McConnell.

Scott Walker survived a recall election last summer, the first governor in U.S. history to do so. Commentators disappointed with the outcome blamed neither the electorate nor the apparent success and popularity of the Wisconsin governor’s reforms. Rather, they singled out a 2010 campaign finance decision by the Supreme Court, Citizens United v. Federal Election Commission, citing it as the reason for Walker’s 7-to-1 spending advantage.

Citizens United held that associations of Americans, including corporations and labor unions, have a First Amendment right to make independent expenditures for or against candidates for public office.

Citizens United did have an important effect on the Wisconsin election. But the effect was almost exactly the opposite of what many pundits implied.

Labor unions poured money into the state to recall Walker. According to the Center for Public Integrity, the National Education Association (NEA), the nation’s largest teachers’ union, spent at least $1 million. Its smaller union rival, the American Federation of Teachers (AFT), spent an additional $350,000. Two other unions, the Service Employees International Union (SEIU), which has more than one million government workers, and the American Federation of State, County, and Municipal Employees (AFSCME), spent an additional $2 million. 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 Walker’s behalf were mostly individuals. According to the Center for Public Integrity, these included Diane Hendricks, Wisconsin’s wealthiest businesswoman, who spent over half a million dollars on his behalf; Bob J. Perry, a Texas home builder, who spent almost half a million; and well-known political contributors such as casino operator Sheldon Adelson and former Amway CEO Dick DeVos, who kicked in a quarter-million dollars each. Businessman David Koch gave $1 million to the Republican Governors Association, which spent $4 million on the Wisconsin race.

These 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 Walker, though presumably the $500,000 Chamber of Commerce contribution to the Republican Governors Association fund came largely from corporate sources. Several groups also ran issue ads that presumably benefited Walker; these groups are not required to disclose their donors and may have received corporate contributions. Corporations and unions could run issue ads before Citizens United, as long as they did not clearly refer to a candidate.

For the most part, though, Walker’s direct, big-ticket support came from sources that have been lawful for decades.

His opponent, Milwaukee Mayor Tom Barrett, got his support primarily from labor unions, whose participation was legitimized by Citizens United. Without that decision so demonized by the political left, Barrett would have been at even more of a financial disadvantage.

Generally speaking, Citizens United is likely to benefit Democrats more than Republicans. Corporations rarely make independent expenditures during candidate elections in their own name because the ads offend customers, workers, and shareholders. And direct corporate contributions to candidates tend to be split more or less evenly between the two parties, largely neutralizing their effect.

Protestors at Wisconsin capitol building
Protesters who filled the rotunda of the Wisconsin Capitol building last year vowed to take their battle to the voting booth and throw Governor Scott Walker out of office. Walker survived a recall vote, the first governor in U.S. history to do so.

But unions have no compunctions against running campaign ads, and almost all of their money goes to Democrats. The Republicans’ advantage, when they have one, comes from rich individual donors—and the right of individuals to make expenditures in support of candidates long predates Citizens United.

This is not to say that our complex and counterproductive campaign-finance laws do not need reform. It is just to point out that the Supreme Court’s much-maligned and misunderstood decision in Citizens United was not the cause of Scott Walker’s financial advantage. Instead, it helped his Democratic opponent.

Michael W. McConnell is a senior fellow at the Hoover Institution and the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School. From 2002 to the summer of 2009, he served as a circuit judge on the United States Court of Appeals for the Tenth Circuit. Before his appointment to the bench, McConnell was the Presidential Professor at the S.J. Quinney College of Law at the University of Utah; before that he was the William B. Graham Professor of Law at the University of Chicago. He has also been a frequent visiting professor at Harvard Law School.

In his academic work, McConnell has written widely on such subjects as freedom of religion, segregation, unenumerated rights, and constitutional history and theory. He is coeditor of Religion and the Law (Aspen Publishing, 2002) and Christian Perspectives on Legal Thought (Yale University Press 2002).

McConnell was born in Louisville, Kentucky, on May 18, 1955. He graduated from Michigan State University (BA, 1976) and the University of Chicago Law School (JD, 1979). Before entering teaching, he served as law clerk to Chief Judge J. Skelly Wright on the United States Court of Appeals for the D.C. Circuit and for Associate Justice William J. Brennan Jr. on the United States Supreme Court, as assistant general counsel of the Office of Management and Budget, and as assistant to the solicitor general of the United States.

McConnell has argued eleven cases in the Supreme Court and served as chair of the Constitutional Law Section of the Association of American Law Schools, cochair of the Emergency Committee to Defend the First Amendment, member of the President’s Intelligence Oversight Board, and special counsel to Mayer, Brown, Rowe & Maw. In 1996, he was elected a fellow of the American Academy of Arts and Sciences.

Reprinted by permission of the Wall Street Journal. © 2012 Dow Jones & Co. All rights reserved.