Congress Should Step Up to Address 'Citizens United'

January 23, 2015
New 114th Congress

The fifth anniversary of the Supreme Court’s decision Citizens United v. FEC was marked by peaceful protests around the nation including one from 99 Rise in the Supreme Court Chambers itself.  And yet it also marked the fifth year in a row that Congress has failed to do anything to address the issue of money in politics save loosening contribution limits for political parties which is a step in the wrong direction.

There is a reason why this court case is one of the few average Americans can name.  Citizens United just strikes so many as wrongheaded and damaging to core democratic ideals because the case allows unlimited corporate and union spending in local, state and federal elections.  

Retired Justice Stevens who wrote a fiery dissent in Citizens United when he was on the bench is still criticizing the decision five years later. He told the University of Florida, “There is an important public interest in giving rival candidates an equal opportunity to persuade voters, but there should be reasonable limits on spending.” He suggests amending the Constitution to allow for reasonable limits on campaign spending. He’s not alone. Senators Udall and Sanders have introduced the Democracy for All Amendment to amend the Constitution.

While the case was decided on Constitutional grounds that corporate expenditure bans violated the First Amendment’s protections of free speech and association, Congress can still pass legislation to address the fall out from Citizens United. And the good news is Congress has a whole raft of bills that have been introduced to mitigate the decision. 

For example, my old boss, Senator Dick Durbin of Illinois has for years tried to get his colleagues to support public financing for Congressional elections. And he is trying again this year. Public financing was upheld as perfectly constitutional in the Bennett case which was decided after Citizens United. And this could magnify the impact of small donors and incentivize candidates for federal office to spend more time getting know their constituents rather than hitting up rich out-of-staters for campaign cash.

Representative Capuano and Senator Menendez are reintroducing the Shareholder Protection Act which addresses two unresolved issues from Citizens United: (1) lack of notice to shareholders that corporate resources are being spent on elections and (2) lack of shareholder consent to corporate political expenditures. Under the bill the U.S. would adopt the approach used in the U.K. since 2000, where British shareholders get disclosure of what firms have spent in elections as well as the chance to vote on the corporate political budget before the money leaves the door. 

Another unresolved issue with Citizens United is the issue of ballooning dark money in elections. This is a problem at the federal and state level, though some states are doing better than others with transparency laws and regulations. The Federal Election Commission has a chance to fix this dark money problem through stronger rules and enforcement but it may take an act of Congress to snap the FEC out of its funk of not requiring full sunlight on political spending in federal races.  A revamped DISCLOSE Act or the Real Time Transparency Act or the Sunlight for Unaccountable Nonprofits Act would all help bring clarity to the sources of money in politics.

The 114th Congress is now entirely in Republican hands, but if they are serious about improving our democracy, they need to reach across the aisle and pick up some of these sensible reforms. As Truman Anderson wrote recently in the U.S. News, conservatives should be just as appalled by Citizens United as liberals. The Bipartisan Policy Center’s report “Governing in a Polarized America: A Bipartisan Blueprint to Strengthen our Democracy” came out in support of greater transparency of money in politics. And polling around rejecting Citizens United and increasing accountability in the democratic process is through the roof for Democrats, Independents and Republicans alike.

The last Congress had some of the most negative approval ratings in the body’s history. The American public did not like its do-nothing approach. Voting on these bills is the right thing to do and if passed, for once the public might actually approve of what their representatives are up to. If Congress wants to restore its good name, restoring the soundness of the democratic process would be an excellent place to start.

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

(Photo: AP)