During the confirmation hearing for President Donald Trump’s Supreme Court nominee, Amy Coney Barrett, Sen. Sheldon Whitehouse (D-R.I.) launched into a diatribe about “dark money,” suggesting that a nefarious network of “polluters” was using nonprofit groups to transform the Supreme Court, with Barrett one cog in that wheel. Sen. Ted Cruz (R-Texas) eviscerated his narrative, striking right at the heart of his arguments by explaining the truth about Citizens United v. Federal Election Commission (2010).
Whitehouse drew up multiple diagrams, claiming to trace the influence of “dark money” behind the Federalist Society, the Judicial Crisis Network, the National Organization for Marriage, and the general push on the Right for originalist judges and justices. He claimed that eeeevil “polluters” use “dark money” to fund “orchestrated amicus flotillas” to get judges to change the law in their interests.
Sen. Ben Sasse (R-Neb.) later mockingly referred to Whitehouse’s diagrams as “A Beautiful Mind conspiracy theory charts.”
Whitehouse’s painstaking documentation made no mention of the far-left groups that file amicus briefs before courts in order to push their preferred policy agendas. Sen. Ted Cruz (R-Texas) noted that the Rhode Island senator omitted any reference to Arabella Advisors, “which is a for-profit entity that manages nonprofits.” In 2017-2018, two of the nonprofits reported $987.5 million in revenue. “We heard a lot of thundering indignation at what was described as $250 million in expenditures. In this case, you’ve got a billion dollars.”
Cruz noted that Demand Justice, a project of those entities, spent $5 million opposing Brett Kavanaugh and just bought a 7-figure ad buy opposing Barrett’s confirmation. “So all of the great umbrage about the corporate interests who are spending dark money is wildly in conflict with the actual facts that the corporate interests that are spending dark money are funding the Democrats, by a factor of 3-to-1 or greater.”
Yet Cruz also cut to the heart of Whitehouse’s argument — the demonization of Citizens United. Leftist critics like Whitehouse condemn that decision for supposedly saying that “corporations are people” and allowing individuals to spend money to advocate for their political positions in the public square. Yet “corporation” is a legal term for a group of individuals and it applies to unions and nonprofits just as much as to companies.
So what exactly did Citizens United change? In this decision, the Supreme Court struck down a law preventing people from publishing a movie critical of a politician before an election.
As Cruz explained, “Citizens United concerned whether or not it was legal to make a movie criticizing a politician.” The small nonprofit group Citizens United made a movie criticizing Hillary Clinton. “The Obama Justice Department took the position that it could fine — it could punish — Citizens United for daring to make a movie critical of a politician.”
Cruz rightly noted that this position is “truly chilling.”
During oral arguments, “Justice Sam Alito asked the Obama Justice Department, Is it your position, under your theory of the case, that the federal government can ban books? And the Obama Justice Department responded yes. Yes, it is our position that if the books criticize a political candidate, a politician, the federal government can ban books.”
“As far as I’m concerned, that is a terrifying view of the First Amendment,” Cruz said.
“By a narrow 5-4 majority, the Supreme Court concluded the First Amendment did not allow the federal government to punish you for making a movie critical of a politician, and likewise that the federal government couldn’t ban books,” he explained.
Yet when Hillary Clinton ran for president in 2016, she said she would only nominate judges who “would pledge to overturn Citizens United.”
“Democrats have shown no compunction in expecting their nominees to make a promise, ‘here’s how I’m going to vote on a pending case,’ judicial ethics be damned,” Cruz declared.
Citizens United rightly defended free speech in politics, allowing Americans to publish and pay to promote movies or books with political messages. This limited the impact of campaign finance laws at the federal level and made it easier to promote or criticize politicians without help from party leaders or media elites.
When former New York City Mayor Mike Bloomberg ran for president earlier this year, he was able to pour about $500 million into his campaign — and he only won American Samoa. As I wrote in March:
Bloomberg gives the lie to all the Citizens United fearmongering. Not only were billionaires like Bloomberg able to spend money on their campaigns before Citizens United, but even after that decision, money in politics does not pull the strings and get people elected. Mike Bloomberg may have revealed his own cynical belief about the ability to buy elections when he said of the 2018 freshman Democrats “I bought–I got them elected,” but in reality, all he did was help boost their chances somewhat. For good or ill, the voters themselves elected those candidates. Votes — not money — have the final say in elections.
Whitehouse can use Citizens United and “dark money” to demonize conservative groups, but his arguments about dark money are based on a false premise, a premise Ted Cruz deftly debunked.
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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.