At the time of the Citizens United decision five years ago, many thought corporations would become the kingmakers of election spending. Instead, it is now clear that wealthy individuals have been the biggest beneficiaries – driving huge increases in spending by super PACs and dark money groups, while often sponsoring candidates like racehorses.
Introduction
Five years ago in Citizens United v. FEC, a narrow majority of the Supreme Court upended a century of precedent to declare that corporations (and, by extension, labor unions) have a First Amendment right to spend unlimited money on elections.
Few modern Supreme Court decisions have received as much public attention, or backlash. Justice Ruth Bader Ginsburg called it the worst ruling of the current Court, saying “[i]f there was one decision I would overrule, it would be Citizens United.”[i] Sixteen state legislatures and almost 600 cities, towns, villages, and other organizations have voted to support a constitutional amendment to overturn the ruling.[ii]
But what, exactly did Citizens United do? Aside from the majority’s controversial interpretation of the Constitution, how has the case actually impacted American democracy in the last five years?
At the time of the decision, many critics (including the Brennan Center) predicted that political spending by for-profit corporations would explode, and election spending would skyrocket. By contrast, the Court majority and its supporters saw the decision as a critical victory for the First Amendment, arguing that the ban on direct corporate spending that the Court struck down had “muffled the voices that best represent the most significant segments of the economy.”[iii]
Five years later, evidence from three national election cycles permits a more definitive assessment of how Citizens United has altered the landscape. A clear-eyed analysis shows that the impact of the case was significant and troubling, but not necessarily in the way many predicted in 2010, or even presume today.
Perhaps most important, the singular focus on the decision’s empowerment of for-profit corporations to spend in (and perhaps dominate) our elections may be misplaced. Although their influence has increased, for-profit corporations have not been the most visible beneficiaries of the Court’s jurisprudence. Instead — thanks to super PACs and a variety of other entities that can raise unlimited funds after Citizens United — the biggest money (that can be traced) has come from an elite club of wealthy mega-donors. These individuals — fewer than 200 people and their spouses — have bankrolled nearly 60 percent of all super PAC spending since 2010.
And while spending by this wealthy club has exploded, we have seen neither the increased diversity of voices that the Citizens United majority imagined, nor a massive upsurge in total election spending. In fact, for the first time in decades, the total number of reported donors has begun to fall, as has the total contributed by small donors (giving $200 or less). In 2014, the top 100 donors to super PACs spent almost as much as all 4.75 million small donors combined.
In short, thanks to the Supreme Court’s jurisprudence, a tiny sliver of Americans now wield more power than at any time since Watergate, while many of the rest seem to be disengaging from politics. This is perhaps the most troubling result of Citizens United: in a time of historic wealth inequality, the decision has helped reinforce the growing sense that our democracy primarily serves the interests of the wealthy few, and that democratic participation for the vast majority of citizens is of relatively little value.
Citizens United also has resulted in at least three other disturbing trends (none acknowledged by the Court):
- A tidal wave of dark money: In striking down limits on corporate spending, the Court extoled disclosure as a remaining safeguard: “With the advent of the Internet,” it proclaimed, “prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable.”[iv] The truth, however, is that Citizens United has enabled election spending by a variety of “dark money” groups who do not disclose their donors, and who have spent more than $600 million on federal elections to date.
- Weakening of contribution limits: The Court said that it was only eliminating limits on “independent” election spending, which in its view raises no corruption concerns. It purported to leave another pillar of campaign finance regulation, limits on direct contributions to candidates and political parties, untouched. In reality, though, the post-Citizens United era has seen rampant collaboration between outside (i.e. non-candidate, non-party) groups and candidates, along with broader efforts to roll back contribution limits altogether.
- Trampling of shareholder and employee rights: The Court suggested that disclosure would be sufficient to ensure that nobody — especially corporate shareholders — would be forced to subsidize speech with which they disagree. But shareholders are often kept in the dark about corporate spending, and there are troubling reports of at least a few corporations (and unions) trying to impose their political views on employees and even coerce them into participating in political speech.
All of this is deeply disheartening to Americans who believe in transparency and think that all citizens, regardless of wealth, should be heard. But while the current Court is unlikely to change course, it alone does not determine the future of our democracy. Other branches of government at the state and federal levels have the opportunity to address much of the damage the Court has caused. In particular, nothing in the Court’s jurisprudence prevents measures to boost political participation through public financing of elections, expose dark money through new disclosure requirements, push for the actual independence of outside spending through tougher coordination laws, or protect the political rights of corporate and union employees.
Overwhelming majorities of Americans support such policies. An astounding 80 percent disapproved of Citizens United. So far this disapproval has failed to translate into major reforms, thanks largely to the indifference or outright hostility of many elected leaders. The question for the next five years is whether that inaction is sustainable, or whether it will finally give way to a real movement for change.
[i] Jeffrey Rosen, Ruth Bader Ginsburg Is an American Hero, New Republic, Sept. 28, 2014, http://www.newrepublic.com/article/119578/ruth-bader-ginsburg-interview-retirement-feminists-jazzercise.
[ii] Press Release, Move to Amend, Election Shows Americans Ready to Amend the Constitution (Nov. 5, 2014), available at https://movetoamend.org/press-release/election-shows-americans-ready-amend-constitution.
[iii] Citizens United v. FEC, 558 U.S. 310, 354 (2010) (quoting McConnell v. FEC, 540 U.S. 93, 257–58 (2003)) (internal bracket omitted).
[iv] Id. at 352.