Christopher Tan PZ (’21)
On a frosty day on January 21, 2010, the Supreme Court made a landmark decision in Citizens United v. FEC that went onto radically reshape the business of American politics. In a 5-4 decision authored by Justice Anthony Kennedy, the case ruled that the 1st Amendment protected the rights of corporate and labor groups to spend money on political candidates. 10 years later, in the midst of a polarized election year, it is worth revisiting the case to evaluate its impact since.
Intriguingly, the case had its origins in a documentary about then-Senator Hillary Clinton in 2008. Conservative nonprofit, Citizens United, sought to promote the documentary through an injunction against the FEC to prevent the application of the Bipartisan Campaign Reform Act (BCRA) in its actions. The BCRA, which was passed in 2002, prevented large corporations and labor unions from funding media broadcasts that referred to a candidate for federal office in the run-up to elections. The film, which Citizens United wanted to broadcast and publicize during that year’s primary elections, was highly critical of Senator Clinton. The group argued that Section 203 of the Bipartisan Campaign Reform Act violated the First Amendment right to freedom of speech, both on its face and as it applied to the film.
After a District Court ruled against the motion, the US Supreme Court decided to elevate the case and agreed to hear oral arguments in Citizens United vs. FEC in March 2009. While the Court initially anticipated ruling on narrower grounds that only pertained to the documentary, it later asked the party’s to file additional briefs that would go on to expand its scope.
Following a special session where both parties reargued the case, the Roberts Court handed down a 5-4 verdict that overruled parts of McConnell v. FEC and Austin v. Michigan Chamber of Commerce, two previous cases cited in the District Court’s decision, and dramatically reshaped American campaign finance rules. The majority opinion contended that the First Amendment protects the right to free speech, even if the speaker is a corporation or a group. While contributions to political action committees were previously limited to $5,000 per person per year, the ruling essentially meant that there were no longer any limitations on this.
Many were fearful of the ruling’s impact on American politics. Under new regulations, major corporations and labor unions could now freely inject vast sums of capital to influence elections.
In his dissenting opinion, Justice John Paul Stevens argued that the framers of the Constitution had sought to guarantee the right of free speech to “individual Americans, not corporations,” and expressed fear that the ruling would “undermine the integrity of elected institutions across the Nation.” Similarly, in his State of the Union Address, just a week after the ruling, President Barack Obama echoed these sentiments, believing that it would “open the floodgates for special interests- including foreign corporations- to spend without limit in our elections.”
The implications of Citizens United have become wide-reaching and significant yet perhaps in an unexpected way. Although the case raised worries that corporate and labor money would grow to dominate American politics, in reality, funds raised through these two groups have comprised only a small fraction of political spending in the period since. However, what has changed is the fraction of spending from a handful of wealthy donors.
With individuals now able to give unlimited sums of money to super PACs that fund and support campaigns, the ruling allowed a handful of individuals to wield unprecedented influence over the parties and candidates that they support. Why did this amount grow substantially from individuals? The answer lies in the anonymity it afforded them.
Although Super-PACs are legally required to disclose their donors, schemes were developed to skirt around regulations. Through a loophole in the US tax code, many groups have utilized the donor anonymity granted to non-profit 501(c) groups, allowing groups like shell organizations to funnel large donations into Super-PACs. When these transactions are disclosed, the Super-PAC is only required to reveal the name of the 501(c)and not the original source of the funds.
This has allowed many individuals to throw substantial amounts of money into political campaigns without the public knowing about it. One of these prominent groups is the NRA Institute for Legislative Action, a pro-gun group that funds many republican candidates. In the 2016 Election alone, this group spent over $35 million on political campaigning, with no legal requirement to disclose the individual sources of their funds.
Naturally, the rise of Super-PACs from Citizens United has led to substantial growth in external political spending since 2010. The numbers back this up. In the 2008 election, independent expenditures totaled $143.7 million. This increased exponentially in the elections that followed. In the 2012 and 2016, election expenditures totaled close to $1 billion and $1.4 billion respectively. The 2018 midterm election became the most expensive midterm in American history. One race alone in Missouri between Democratic Senator Claire McCaskill and her Republican opponent, Josh Hawley, saw close to $77 million being spent by external groups a greater figure than the $43 million spent in the same 2016 race. Current projections predict that this year’s election will also set spending records, with Super-PACs playing a starring role in fueling this rise.
In the ten years since Citizens United, a small group of wealthy individuals has grown to exert an outsized influence on local, state and federal elections in the United States. A report by the Brennan Center for Justice in 2014 noted that in the period since 2010, 60 percent of the super-PAC money spent in federal elections came from just 195 individuals and spouses.
As such, a legislative imbalance has predicated across America politics. The outsized role of super-PACs has made politicians more inclined to listen to their interests as opposed to the public. It is notable that despite over 90 percent of Americans wanting stronger background checks for gun purchases and close to 7 out of 10 Americans wanting legislation to respond to climate change, little has been done by Congress to mitigate these issues. Through the guise of super-PACs and other special interest groups, rich donors have been given free rein to fund politicians and campaigns that support one’s agenda.
In the coming years, it appears unlikely that this Status Quo will change. While House Democrats passed a sweeping campaign finance reform bill last year, it was quickly struck down in the Republican-controlled Senate. Similarly, since President Trump took office, the Supreme Court has swung further right. As such, Americans should expect the plutocracy afforded by Citizens United to remain. As Justice Stephen Breyer pointed out in his dissenting opinion in a 2014 case that further weakened campaign finance laws: “Where enough money calls the tune, the general public will not be heard.”