Skip Navigation
Expert Brief

Beyond ‘Citizens United’: How the Supreme Court Empowered the Very Wealthiest in Elections

Only ten years ago, elections weren’t fueled by secret money, but on the sixth anniversary of Citizens United, the political landscape it helped create has become clear.

Published: January 20, 2016

Cross-posted on Medium

On the sixth anniversary of Citizens United, the polit­ical land­scape it helped create has become clear. Million-dollar contri­bu­tions fund super PACs, indi­vidu­als can write $5 million checks directly to candid­ates and their parties, and the odds that an ordin­ary citizen can success­fully run for office have grown longer.

It may seem that the Consti­tu­tion requires us to endure this dysto­pian campaign finance regime, but the real­ity is that it is the handi­work of only five Supreme Court justices — and only in the last decade. There is noth­ing about today’s money in polit­ics rules that is perman­ent or inev­it­able. It’s worth consid­er­ing how four widely-deplored elements of today’s campaign finance system came about in such a short time.

Only ten years ago, elec­tions weren’t fueled by secret money, and outside groups were restric­ted in their elec­tion spend­ing. But when the Court first loosened those restric­tions in 2007’s Wiscon­sin Right to Life, and then elim­in­ated them with Citizens United in 2010, outside spend­ing surged.Making matters worse, the FEC and the IRS are either unable or unwill­ing to enforce regu­la­tions that would require disclos­ure of donors by certain outside groups. For all intents and purposes, so long as these “social welfare organ­iz­a­tions” and trade asso­ci­ations don’t spend too much money on polit­ics, they need not disclose their donors.

For most of the 2000’s, these entit­ies, known as “dark money” groups, spent prac­tic­ally noth­ing on campaigns. But in the wake of the first Court decision in 2007, organ­iz­a­tions that do not disclose their donors spent more than $70 million. In 2012, after Citizens United, they spent more than $300 million.

Already, undis­closed spend­ing in the 2016 cycle is outpa­cing all prior elec­tions. Though the Court often speaks posit­ively about the import­ance of disclos­ure, their decisions allow­ing for unlim­ited inde­pend­ent spend­ing laid the ground­work for unlim­ited secret spend­ing.

Eight years ago, wealthy and well-connec­ted candid­ates had a harder time drown­ing out the voice of their oppon­ents. Under federal law at that time, if a wealthy candid­ate contrib­uted more than $350,000 of their own money to their campaign, contri­bu­tion limits on her oppon­ent were raised to help make up the differ­ence. And several states had public finan­cing systems with similar provi­sions to help publicly-financed candid­ates remain compet­it­ive with candid­ates who could tap large pools of private money.

But in decisions with slim major­it­ies in 2008 and 2011, the Supreme Court said these laws were unfair because they some­how “penal­ized” the candid­ates with greater resources. Since the Court’s decisions, parti­cip­a­tion in public finan­cing programs in Arizona, the subject of the 2011 ruling, and Maine, which had a similar provi­sion, has dropped by half and a third respect­ively, and the success rate of self-fund­ing million­aire congres­sional candid­ates hasjumped from 12 to 20 percent.

Super PACs, which can raise unlim­ited money but only spend those funds on activ­it­ies that are allegedly inde­pend­ent of a candid­ate’s campaign, have become one of the most power­ful vehicles for elec­tion spend­ing. But six years ago, they didn’t even exist. That’s because there were limits on how much a donor could give a PAC, no matter how they spent their money.

That all changed with Citizens United, when the Court reasoned that as long as the expendit­ures are inde­pend­ent of a candid­ate, there’s no risk of corrup­tion. Only two months later, a lower court followed the Supreme Court’s logic and ruled that there’s no need for contri­bu­tion limits if a PAC only spends inde­pend­ently of a candid­ate. Thus, today’s super PAC was born. From 2010 to 2014, super PACs spent more than $1 billion, and more than $600 million of that came from just 195 donors and their spouses. And the fail­ure to enforce the “inde­pend­ence” rule means that super PACs often func­tion effect­ively as arms of candid­ates’ campaigns.

2014’s McCutcheon was the most recent ruling to stymie long­stand­ing limits on elec­tion spend­ing. Before that decision, one person could­n’t give more than $123,000 directly to all candid­ates and parties combined in a single elec­tion cycle. That limit preven­ted the wealth­i­est from having outsized influ­ence, and ensured donors could not easily circum­vent contri­bu­tion limits by giving money to parties and candid­ates who could easily shuffle it between then. The Court struck it down in another 5–4 ruling, and today one person can give $5.1 million.

The result was imme­di­ate, and strik­ing. In the 7 months between McCutcheonand the 2014 midterm elec­tion, almost 700 donors exceeded the old limits.And that Decem­ber, Congress exploited the decision by creat­ing a hand­ful of new polit­ical party accounts that can collect contri­bu­tions of $100,000 each. Now both major parties are soli­cit­ing million-dollar contri­bu­tions.

A decade ago, the campaign finance system was far from perfect, but ordin­ary citizens had a stronger voice, could more easily run for office, and were better informed about the special interests support­ing each candid­ate. The series of 5–4 Supreme Court decisions begin­ning in 2007 have gutted that system. Today’s status quo is not the result of some ines­cap­able or long-stand­ing read­ing of the First Amend­ment. The real­ity is that one vote on the Court is all that stands between us and the creation of a system that values aver­age citizens’ voices and elec­tion integ­rity.