Friday, June 15, 2012

Citizens United and the Wisconsin Recall

What effect did the Citizens United ruling have on the Wisconsin recall election?

Many Democrats blame Scott Walker's victory on Citizens United, pointing out that anti-recall forces vastly outspent the pro-recall forces. This flood of out-of-state money was made possible, they argue, by the Citizens United decision, which struck down certain limits on corporate electioneering. In short, Citizens United made possible the rise of the pernicious "super PACs" that bought the election for Scott Walker. As a result, Scott Walker was able raise nearly eight times as much money as Tom Barrett ($30.5 million to $3.9 million.)

Republicans disagree. For one thing, they argue, things would have been even worse for the recall efforts prior to Citizens United, because Citizens United also makes possible unlimited electioneering expenditures by labor unions, which made the most of this new freedom and spent heavily in support of the Wisconsin recall effort. Indeed, when you look at the independent expenditures, it turns out that pro-Barrett forces spent $1.6 million more on the recall election than pro-Walker forces did.  When these independent expenditures are included, Walker's money advantage shrinks considerably.

Moreover, Republicans argue, the vast majority of the independent expenditures made on Scott Walker's behalf were made by individuals—not corporations or super PACs—and individuals have been free to spend as much as they like on independent electioneering activities since the Supreme Court decided Buckley v. Valeo in 1976. In other words, without Citizens United, the wealthy individuals would have been free to spend their millions in support of Walker, but the labor unions would have been powerless to respond in kind.

Also, the disparity in the amount Scott Walker directly raised ($30.5 million) versus the amount Tom Barrett raised ($3.9 million) is largely explained by a quirk of Wisconsin law. Walker, as the incumbent, was allowed to receive unlimited direct contributions from individuals, while Barrett was hamstrung by the general $10,000 per-person cap. So Walker had a huge fundraising advantage under Wisconsin law, and this advantage had nothing to do with Citizens United.

One easy answer about the effect of Citizens United on the Wisconsin recall election would be to say it had no effect, because that case dealt with a federal election law that concerned only federal elections. But that would be wrong: state election laws have been struck down in light of Citizens United. Pertinently, the Seventh Circuit relied on Citizen United to strike down a Wisconsin law that previously imposed a $10,000 yearly cap on the amount that individuals could make to "independent expenditure committees" of PACs and the like. But since individuals were permitted to make unlimited contributions directly to Walker's campaign, it's hard to see how a cap on indirect contributions would have changed anything.

Ultimately, it seems hard to maintain that Citizens United really played much of a role in the Wisconsin recall election. But I'm interested in your thoughts, Mr. Gillette (if you have any).

One final point. Tom Barrett raised only $3.9 million in direct contributions. But he ended up spending only $2.9 million. If money is so important in elections, failing to spend 25% of what you raised seems like a pretty stupid thing to do. (All I can think of is that perhaps he was saving money for a recount, or something?)


  1. I was unaware that anyone was blaming Citizens United for Mayor Barrett's loss. I do not blame Citzens United. Your post makes a convincing case that others, assuming there are others, should stop blaming Citizens United.

  2. Sorry I was too lazy to add links to Democrats blaming Citizens United for recall results, but I have fixed that. For example: (1) Ed Schultz of MSNBC: "Citizens United saved the day for Scott Walker"; (2) Prof. Paul Secunda at Marquette: "First and foremost, the Citizen United decision played a huge role."; (3) Greg Sargent, Washington Post: "Walker outraised his vanquished opponent Tom Barrett by nearly eight to one ... thanks to Citizens United"; (4) ABC News: "Union groups and their supporters spent much of Wednesday castigating billionaire donors, Citizens United and corporate power in the wake of Wisconsin Gov. Scott Walker's victory over the effort to recall him from office."


Comments on posts older than 30 days are moderated because almost all of those comments are spam.