By: Michael Regnier
Decided in 2010, Citizens United v. FEC struck down a portion of the Bipartisan Campaign Reform Act championed by John McCain and Diane Feingold.[1] The ruling also overruled the previous Supreme Court decision of Austin v. Michigan Chamber of Commerce (1990) as well as portions of McConnell v. FEC (2003).[2]
Citizens United v. FEC was a 5-4 decision by the Roberts Court. The majority opinion, written by Justice Kennedy, argued that a corporation’s speech, in this case their independent expenditures, is protected by the First Amendment.[3] The minority opinion, written by Justice Stevens, argued that corporations are not members of society and can be influenced to act in certain ways by foreign powers.[4] Additionally, the dissent stated that there is compelling governmental interest to restrict corporations’ ability to spend on local and national elections as their interests may conflict with those of citizens.[5] Justice Stevens and the dissent predicted the rise in money infiltrating politics with an ominous quote, “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”[6]
The portion of the Bipartisan Campaign Reform Act struck down in the Citizens United v. FEC Supreme Court ruling was the provision on limiting corporations’ independent expenditures.[7] Independent expenditures are expenditures, or money spent, for a communication expressly advocating for the election or defeat of a clearly identified political candidate. The communication, however, cannot be made in coordination with a candidate or their political party.[8] The same pattern was followed in Austin v. Michigan Chamber of Commerce and McConnell v. FEC where the prohibitions on independent expenditures by corporations were overruled.[9]
Citizens United v. FEC was not the only Supreme Court ruling that drastically increased monetary influence in elections. Rulings prior to Citizens United v. FEC, such as FEC v. Wisconsin Right to Life in 2007, also contributed to the weakening of campaign finance laws. However, the precedent created by Citizens United v. FEC has contributed to many rulings weakening campaign finance laws even further such as, Speechnow.org v. FEC, Carey v. FEC, and McCutcheon v. FEC.[10] These decisions further contributed to the inexorable increase of money in elections.
Ultimately, the court made the wrong decision in Citizens United v. FEC. In ruling that independent political spending by corporations and other groups is protected by the First Amendment, the court not only redefined political speech but did away with longstanding precedent. The repercussions of their decision have been both significant and extensive even in the relatively short twelve years since the ruling was made.
The immediate legal repercussions of the Citizens United decision were subsequent decisions in Speechnow.org v. FEC, Carey v. FEC, and McCutcheon v. FEC. In Speechnow.org v. FEC the United States Court of Appeals for the District of Columbia ruled in 2010 that based on the precedent in Citizens United v. FEC limits on what SpeechNOW could receive and what individuals could donate to them were unconstitutional.[11] This led to the explosion of Super PACs, which are groups that make independent expenditures in federal races.[12]
The decision in Carey v. FEC allowed for the creation of hybrid PACs which can contribute limited amounts of money directly to political campaigns and parties while also being able to spend unlimited amounts on independent expenditures.[13]
McCutcheon v. FEC further weakened the Bipartisan Campaign Reform Act in 2014 when the Supreme Court ruled to remove an individual’s aggregate limit on campaign contributions in an election cycle. This meant that while there is still a limit on the amount of money an individual can give to one committee, there is now no limit on the amount they can contribute in total to PACs and other committees.[14] A direct consequence of this ruling is the outsized importance of wealthy donors. Since this decision, the 10 most wealthy donors and their spouses have spent over 1.2 billion dollars on federal elections including making up 7% of all election donations in 2018.[15] Previously, their influence hovered around 1% of all donations.[16]
Since the Citizens United v. FEC ruling was made, outside money has flooded into elections. In the decade since, spending on elections from non-party ‘independent’ groups has drastically increased to approximately 4.5 billion dollars. In the two decades prior to the decision this same spending only totaled 750 million.[17] Candidates have been outspent by outside groups in 126 races post Citizens United v. FEC, whereas this only happened 15 times in the 5 elections cycles prior to the decision.[18]
The Citizens United decision also led to a dramatic increase in dark money in politics. Dark money groups are nonprofit organizations that do not have to disclose their donors.[19] The influence of these groups has greatly increased as their spending totaled 963 million dollars in the last decade, as opposed to 129 million in the decade prior to the Citizens United decision.[20] Additionally, many of the largest dark money donors are large corporations which in turn sometimes receive money from foreign companies.[21]
Now, one may ask, why does money matter so much in politics? Historically, the candidate who spends the most money, or nowadays has the most money spent by outside groups supporting them, wins.[22] For example, since the 2000 election cycle the candidate with more money spent supporting them has won election 92.34% of the time in the House of Representatives and 74% of the time in the Senate.[23] One could argue that money matters more than any other factor in determining the outcome of any given election.
Solutions to this situation are hard to come by. Democracy Dollars, touted by Andrew Yang in his run for president, seek to ‘wash out’ corporate money by providing each citizen with $100 to spend towards their candidate of choice each year.[24] A similar program launched in Seattle in 2015 providing citizens with Democracy Vouchers which they could give to candidates. To be able to receive Democracy Vouchers from citizens candidates had to abide by specific spending limits.[25] Critics, however, argued that this only increased outside spending and increased the influence of PACs as the candidates had to abide by the spending limits while there were no such limitations on outside groups.[26] If scaled for the voting population of the United States, currently around 240 million people, Andrew Yang’s Democracy Dollars plan would allot 24 billion dollars per election cycle, more than enough to drown out the dark and corporate spending. Even if it is assumed only people who turned out to vote would care enough to donate their $100, based on the 2020 election cycle turnout, that would still result in over 15 billion in spending, still enough to exceed corporate and dark money spending. If enacted for federal elections, every two years, the benefits would exceed the minor costs to the taxpayers. In fact, Congress already has over 400 million sitting unused in an account specifically for Presidential candidates.[27] Currently, no candidates want to claim the money because of the restrictions on spending and financing they would face if they accepted that money.[28] However, if this account were to be repurposed for a Democracy Dollars based program, it would provide a jumpstart in funding and proof that the system has precedent.
Some argue that a constitutional amendment is the only way to stem the tide of money in elections. However, with how politicized and characterized by inaction our government is today, this seems unlikely, as does waiting for the Supreme Court to change its mind. Feelings of powerlessness are not unique to campaign finance reform. For example, at one point in our history it seemed unlikely that civil rights, women’s suffrage, and gay marriage would ever be achieved, and yet they were. The quality each of these successful movements share is grassroots support and organization. The good news is that the American public is almost uniform in their dislike for the Citizens United v. FEC decision. This distaste has led more than 20 states and 800 local governments to pass resolutions calling for a constitutional amendment to overturn the decision and enact more stringent campaign finance regulations.[29] For a constitutional amendment to pass, or for the Supreme Court to revisit their decision, there will need to be widespread support for campaign finance reform, starting at the local level and expanding to the state level. Only when the political pressure is overwhelming will Congress or the Supreme Court act.
At the outset reform may seem to be an unattainable goal, yet America was founded on an insurmountable task. This is not a comparison to be made lightly, but electing candidates that are bought by corporations and dark money groups puts democracy in peril. The further we are from the Citizens United v. FEC, the more the consequences from that decision will rear their ugly heads.
The court’s error in Citizens United v. FEC ushered in an era of weakening campaign finance restrictions and increased spending by outside groups. As Justice Stevens said, our democracy will continue to not function effectively as long as candidates primarily funded by dark money and PACs win elections.
[1] Citizens United v. FEC, 558 U.S. 310 (2010)
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Understanding Independent Expenditures, FEC (Jan. 4 2022), https://www.fec.gov/help-candidates-and-committees/candidate-taking-receipts/understanding-independent-expenditures/
[9] Citizens United v. FEC, 558 U.S.
[10] Karl Evers-Hillstrom et al., More money, less transparency: A decade under Citizens United, Open Secrets (Jan. 4 2022) https://www.opensecrets.org/news/reports/a-decade-under-citizens-united#dark-money
[11] Speechnow.org v. FEC, 599 F.3d 686, 389 U.S. App. D.C. 424 (2010)
[12] Registering as a Super PAC, FEC (Jan. 4 2022), https://www.fec.gov/help-candidates-and-committees/filing-pac-reports/registering-super-pac/
[13] Carey v. FEC, 864 F. Supp. 2d 57, 2012 U.S. Dist.
[14] McCutcheon v. FEC, 572 U.S. 185 (2014)
[15] Evers-Hillstrom supra note 10.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Did Money Win?, Open Secrets (Jan. 4 2022) https://www.opensecrets.org/elections-overview/winning-vs-spending?cycle=2020
[23] Id.
[24] Nikoel Hytrek, Andrew Yang’s Democracy Dollars Plan Aims to Empower Voters, Iowa Starting Line (Nov. 25 2019) https://iowastartingline.com/2019/11/25/andrew-yangs-democracy-dollars-plan-aims-to-empower-voters/
[25] Democracy Voucher Program, Seattle (Jan. 4 2022) https://www.seattle.gov/democracyvoucher/about-the-program\
[26] Danny Westneat, Democracy vouchers are supposed to be an answer, but big money is swamping Seattle’s elections, The Seattle Times Insider (Jan. 4 2022) https://www.seattletimes.com/seattle-news/politics/wait-theyre-saying-seattles-a-model-of-democracy-big-money-pacs-are-swamping-our-elections-like-never-before/
[27] Dave Levinthal, How more than $404 million in taxpayer money got locked away in a forgotten government fund — and lawmakers won’t spend it or return it, Insider (Jan. 18 2022) https://www.businessinsider.com/400-million-in-forgotten-government-account-presidential-election-campaign-fund-2021-7
[28] Id.
[29] Taylor Lincoln et al., Ten Years After Citizens United, Public Citizen (Jan. 15 2020) https://www.citizen.org/article/ten-years-after-citizens-united/#_ftn35