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Jeffrey Toobin's Baseless Attack on the Supreme Court

4:00 PM, Apr 4, 2011 • By MARK HEMINGWAY
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Jeffrey Toobin writes in this week's New Yorker on the impact of the Citizens United Supreme Court decision. While some of it is merely disagreeable, his conclusion is arrant nonsense:

During the 2010 campaign, Karl Rove pioneered the partisan exploitation of Citizens United by directing Republican donors to American Crossroads and American Crossroads GPS, his largely unregulated political operations. As he told Fox News, “What we’ve essentially said is, if you’ve maxed out to the senate committee, the congressional committee, or the R.N.C. and you’d like to do more, under the Citizens United decision you can give money to American Crossroads.” Rove’s organizations, which raised seventy-one million dollars in the 2010 cycle, have vowed to raise a hundred and twenty million for 2012. Crossroads GPS is supposedly limited to grass-roots activities and public-policy analysis—categories for which it is not currently required to disclose how much it raised or from whom. Needless to say, these categories are so broad that they can, in effect, function like campaign spending.

It is customary to point out that Citizens United also frees labor unions to make unlimited expenditures. Because unions generally favor Democrats, this observation is supposed to lend a gloss of bipartisanship to the Court’s reworking of a century of laws. But, these days especially, any notion of an equivalency of means between unions and corporations is, to put it mildly, far-fetched. So the vulgar truth about Citizens United, the doomed Arizona law, and related future cases remains: the five Justices appointed by Republicans are thrashing the four appointed by Democrats—to the enormous advantage of the G.O.P. Coincidence? You be the judge.

I'm sorry, but Toobin's argument here is totally unsupported by the facts. His base assumption that more corporate spending benefits the GOP is shaky; in fact, nearly all business sectors -- including Wall Street -- have given more to Democrats in the last few election cycles.

In other words, Democrats get significantly more money from business in addition to the fact that they get 90+ percent of all the money unions spend in politics. And bear in mind that since 1989, 11 of the top 20 biggest political donors are labor unions. Take it away, Tim Carney:

Democrats cite the big advantage the GOP enjoyed in funding from Super PACs -- outside groups that could not coordinate with parties or committees, but could raise unlimited funds including direct contributions from corporations. American Crossroads, by far the biggest of the Super PACs, spent $21.6 million to help Republicans. Crossroads' nearest competitor, America's Families First, spent $5.58 million helping Democrats.

All told, according CRP data, conservative Super PACs outspent liberal ones $34.7 million to $27.9 million (and that includes a Super PAC expressly set up to help write-in Republican Murkowski beat Republican nominee Joe Miller in Alaska). Put another way, Democrats' $67 million edge from traditional PACs was nearly 10 times larger than Republicans' $6.8 million edge among Super PACs.

Yet, Obama continues to talk as if the special interests and big business are in bed with Republicans. He gets away with it, somehow, as the media largely ignores data -- such as the above -- that tell a different story.

Also, when Toobin writes the following, he makes American Crossroads sound especially sinister: "Crossroads GPS is supposedly limited to grass-roots activities and public-policy analysis—categories for which it is not currently required to disclose how much it raised or from whom. Needless to say, these categories are so broad that they can, in effect, function like campaign spending."

Toobin must not have any familiarity with how labor unions operate. Member-to-member communications and many other grassroots, ahem, "organizing" activities have always been exempt from campaign finance disclosure even though they are often used for explicitly political purposes. Somehow this was not a reason to tut-tut about our campaign finance laws when unions were doing it to help elect Democrats.

Finally, this fact seems have gone almost completely unremarked upon since last November. In the wake of Citizens United and all of that corporate money supposedly flooding our elections, Democrats still outspent Republicans:

The pattern appears to contradict widespread complaints from Democrats that they were being unfairly overrun by wealthy Republicans, many of whom donated money to conservative groups to spend on political races - unencumbered by the limits and public-disclosure requirements that constrain most political fundraising. The data show that even in many races in which Republicans had more outside help, they still had fewer resources than their Democratic opponents.

If Jeffrey Toobin wants to attack the integrity of Supreme Court justices from a perch as august as the New Yorker, he should marshall some actual facts instead of relying on lazy generalizations.

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