Much has been written about Citizens United, the 2010 Supreme Court decision that enabled corporations and labor unions to spend unlimited sums to support or oppose political candidates, so long as the spending was independent of the campaigns.

I won’t undertake to identify the many ways that this ruling has animated passions in different sectors of the body politic. But I do want to address a narrow, but intense, controversy that has arisen over the many references to Citizens United in New York Times news articles and editorials, and in other media.



At issue is whether it is accurate to attribute the Sheldon Adelson phenomenon – that is, very large gift-giving by individuals to “super PACs” in the presidential campaign – to the Citizens United decision.

Representing the naysayers, the prominent First Amendment lawyer Floyd Abrams noted in a letter to The Times concerning a Jan. 10 article about Mr. Adelson that “the Citizens United case does not deal with ‘wealthy individuals’ at all” and that the case relevant to individual giving was the 1976 Supreme Court ruling in Buckley v. Valeo.

Ira Glasser, a retired executive director of the American Civil Liberties Union , has written to me several times to make the same point, noting that The Times has frequently and erroneously tied Citizens United to large individual contributions.

He objected most recently to a Feb. 24 editorial that said, “Freed of nearly all regulations or good sense by Citizens United and other court decisions, the super PACs are raising money in ludicrously large sums.”

Of this, Mr. Glasser wrote, “That the Super PACs are raising large sums of money is a fair enough observation, but that this is a consequence of Citizens United is untrue to the extent of it having enabled INDIVIDUAL funders of independent expenditures. And individuals are still providing most of the money.”

George Will, in a column published on Thursday in The Washington Post, took up the same cause, citing the same article that Mr. Abrams complained about and adding, “Citizens United has nothing to do with Adelson and others who are spending their own money, not any corporation’s.”

Without bogging down too much in the chronology, I would note that after complaints started piling up, the paper began to adjust its references to Citizens United. The Times began to use phrases like “Citizens United and other court decisions” (see the editorial excerpt above) and “a 2010 Supreme Court ruling and other legal and regulatory decisions.”



But the complaints continue. So is The Times wrong about this? I am not a legal expert, but I will say that if The Times is wrong – flat wrong , that is – then it is in pretty good company.

That’s because the Federal Election Commission, which issues advisory opinions interpreting the law, has directly tied the Citizens United decision to the legal right of individuals to give unlimited sums to independent political committees, i.e. super PACs.

In a July 22, 2010, advisory opinion, the F.E.C. said a ruling known as “SpeechNow,” issued in 2010 by the Federal Court of Appeals for the District of Columbia Circuit, “relied extensively” on Citizens United.

The F.E.C. went on: “Following Citizens United and SpeechNow, corporations, labor organizations and political committees may make unlimited independent expenditures from their own funds, and individuals may pool unlimited funds in an independent expenditure-only political committee.”

Fred Wertheimer, president of Democracy 21, a group that promotes campaign finance reform, published an article on the group’s Web site on Thursday laying out the relationship between Citizens United, SpeechNow and what I’ve called the Sheldon Adelson phenomenon.

“The SpeechNow decision is explicitly based on the Citizens United decision,” he wrote. Citizens United enabled corporations to make unlimited expenditures as long as the money was spent “independently from the candidates they are supporting.” SpeechNow, meanwhile, enabled individuals to give without limit to political committees – super PACs – as long as the committee spent its money independently.

Looking at both sides, I find it hard to ignore the F.E.C. advisory opinion and Mr. Wertheimer’s dissection showing the connections that tie Citizens United via SpeechNow to the Sheldon Adelson phenomenon.

A separate question is whether The Times’s shorthand – “Citizens United and other court decisions,” etc. – is adequate to describe this legal Tinkers-to-Evers-to-Chance. Framing this as a Citizens United-derived phenomenon without referring to SpeechNow has the effect of laying all blame for individual spending at the feet of Citizens United. That’s not accurate.

The truth is – at least as far as I can tease it out of this mess – that the Sheldon Adelson phenomenon is the product of a long line of decisions. Perhaps it would be better to de-emphasize Citizens United as the critical milestone and get on with tracking the money in the current campaign.