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Commentary: Big money didn't lose

This article first appeared in the St. Louis Beacon, Nov. 27, 2012 - Many election post-mortems (from the right and the left) seem to be saying exactly that this election proved that the presidency isn’t for sale nor any other office; the people’s voice will rule at the end of the day, not the moneyed interests. Sure, the line goes, there’s too much money in politics, but money can’t buy you everything.

True, money isn’t the only factor in who wins; and it is votes, not dollars that decide elections. But money can have a corrupting factor in elections, even if the candidate with the most money doesn’t win.

How? By keeping candidates in the race, money helps those candidates push their message longer, and to win more support for it even if that support doesn’t translate into victory. Thus, money moves the agenda. It has people taking about things they might not otherwise be talking about (such as, no abortion even in the case of rape), and not talking about things (climate change) maybe they should be talking about.

Take the Republican primary as an example: big money (from billionaires Foster Freiss and Sheldon Adelson) kept Rick Santorum and Newt Gingrich in the campaign, far beyond the point at which popular support and small donations would have taken them. So we were talking about contraception and whatever Newt Gingrich wanted to talk about for a pretty long (seemingly interminable) time. Campaign money did that, even though Santorum and Gingrich would ultimately lose.

The way money distorts America’s political conversation may be the real legacy of the Citizens United decision. Contrary to popular belief, Citizens United isn’t responsible for everything bad in the world, and in many ways it was the culmination of a long line of Supreme Court decisions that were slowly, but inexorably, opening the floodgates to more money in campaigns. But Citizens United did decisively repudiate the idea that (in the words of a decision it overturned) “immense aggregations of wealth … accumulated with the help of the corporate form” have “corrosive and distorting effects” on political debate, effects that “have little or no correlation to the public’s support for the corporation’s political ideas.”

Distortion may not always be bad. Sometimes big money may be on the side of ideas we like, or it can keep races going that deserve to go on a little longer (Republicans were genuinely ambivalent about Romney). But we should not think that big money doesn’t matter just because those on which big money bet lost many of the elections this year. Because it remakes the shape of political discourse, money wins even when it loses.

Chad Flanders is an assistant professor at Saint Louis University School of Law  and this academic year is a visiting Fulbright professor at Nanjing University School of Law in China. 

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