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Explainer

Citizens United Explained

The 2010 Supreme Court decision further tilted political influence toward wealthy donors and corporations.

Published: December 12, 2019

Janu­ary 21, 2020 will mark a decade since the Supreme Court’s ruling in Citizens United v. Federal Elec­tion Commis­sion, a contro­ver­sial decision that reversed century-old campaign finance restric­tions and enabled corpor­a­tions and other outside groups to spend unlim­ited funds on elec­tions.

While wealthy donors, corpor­a­tions, and special interest groups have long had an outsized influ­ence in elec­tions, that sway has dramat­ic­ally expan­ded since the Citizens United decision, with negat­ive reper­cus­sions for Amer­ican demo­cracy and the fight against polit­ical corrup­tion.

What was Citizens United about?

A conser­vat­ive nonprofit group called Citizens United chal­lenged campaign finance rules after the FEC stopped it from promot­ing and airing a film criti­ciz­ing pres­id­en­tial candid­ate Hillary Clin­ton too close to the pres­id­en­tial primar­ies.

A 5–4 major­ity of the Supreme Court sided with Citizens United, ruling that corpor­a­tions and other outside groups can spend unlim­ited money on elec­tions.

What was the rationale for the ruling?

In the court’s opin­ion, Justice Anthony Kennedy wrote that limit­ing “inde­pend­ent polit­ical spend­ing” from corpor­a­tions and other groups viol­ates the First Amend­ment right to free speech. The justices who voted with the major­ity assumed that inde­pend­ent spend­ing cannot be corrupt and that the spend­ing would be trans­par­ent, but both assump­tions have proven to be incor­rect.

With its decision, the Supreme Court over­turned elec­tion spend­ing restric­tions that date back more than 100 years. Previ­ously, the court had upheld certain spend­ing restric­tions, arguing that the govern­ment had a role in prevent­ing corrup­tion. But in Citizens United, a bare major­ity of the justices held that “inde­pend­ent polit­ical spend­ing” did not present a substant­ive threat of corrup­tion, provided it was not coordin­ated with a candid­ate’s campaign. 

As a result, corpor­a­tions can now spend unlim­ited funds on campaign advert­ising if they are not form­ally “coordin­at­ing” with a candid­ate or polit­ical party. 

How has Citizens United changed elec­tions in the United States?

The ruling has ushered in massive increases in polit­ical spend­ing from outside groups, dramat­ic­ally expand­ing the already outsized polit­ical influ­ence of wealthy donors, corpor­a­tions, and special interest groups.

In the imme­di­ate after­math of the Citizens United decision, analysts focused much of their atten­tion on how the Supreme Court desig­nated corpor­ate spend­ing on elec­tions as free speech. But perhaps the most signi­fic­ant outcomes of Citizens United have been the creation of super PACs, which empower the wealth­i­est donors, and the expan­sion of dark money through shad­owy nonprofits that don’t disclose their donors.

A Bren­nan Center report by Daniel I. Weiner poin­ted out that a very small group 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,” wrote Weiner, “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.”

An elec­tion system that is skewed heav­ily toward wealthy donors also sustains racial bias and rein­forces the racial wealth gap. Citizens United also unleashed polit­ical spend­ing from special interest groups.

What are PACs and super PACs?

Polit­ical action commit­tees, or “PACs,” are organ­iz­a­tions that raise and spend money for campaigns that support or oppose polit­ical candid­ates, legis­la­tion, or ballot initi­at­ives. Tradi­tional PACs are permit­ted to donate directly to a candid­ate’s offi­cial campaign, but they are also subject to contri­bu­tion limits, both in terms of what they can receive from indi­vidu­als and what they can give to candid­ates. For example, PACs are only permit­ted to contrib­ute up to $5,000 per year to a candid­ate per elec­tion. 

In the 2010 case Speech­now.org v. FEC, however, a federal appeals court ruled — apply­ing logic from Citizens United — that outside groups could accept unlim­ited contri­bu­tions from both indi­vidual donors and corpor­a­tions as long as they don’t give directly to candid­ates. Labeled “super PACs,” these outside groups were still permit­ted to spend money on inde­pend­ently produced ads and on other commu­nic­a­tions that promote or attack specific candid­ates.

In other words, super PACs are not bound by spend­ing limits on what they can collect or spend. Addi­tion­ally, super PACs are required to disclose their donors, but those donors can include dark money groups, which make the original source of the dona­tions unclear. And while super PACs are tech­nic­ally prohib­ited from coordin­at­ing directly with candid­ates, weak coordin­a­tion rules have often proven inef­fect­ive.

Super PAC money star­ted influ­en­cing elec­tions almost imme­di­ately after Citizens United. From 2010 to 2018, super PACs spent approx­im­ately $2.9 billion on federal elec­tions. Notably, the bulk of that money comes from just a few wealthy indi­vidual donors. In the 2018 elec­tion cycle, for example, the top 100 donors to super PACs contrib­uted nearly 78 percent of all super PAC spend­ing.

What is dark money?

Dark money is elec­tion-related spend­ing where the source is secret. Citizens United contrib­uted to a major jump in this type of spend­ing, which often comes from nonprofits that are not required to disclose their donors.

In its decision, the Supreme Court reasoned that unlim­ited spend­ing by wealthy donors and corpor­a­tions would not distort the polit­ical process, because the public would be able to see who was paying for ads and “give proper weight to differ­ent speak­ers and messages.” But in real­ity, the voters often cannot know who is actu­ally behind campaign spend­ing.

That’s because lead­ing up to Citizens United, trans­par­ency in U.S. elec­tions had star­ted to erode, thanks to a disclos­ure loop­hole opened by the Supreme Court’s 2007 ruling in FEC v. Wiscon­sin Right to Life, along with inac­tion by the IRS and contro­ver­sial rule­mak­ing by the FEC.

Citizens United allowed big polit­ical spend­ers to exploit the grow­ing lack of trans­par­ency in polit­ical spend­ing. This has contrib­uted to a surge in secret spend­ing from outside groups in federal elec­tions. Dark money expendit­ures increased from less than $5 million in 2006 to more than $300 million in the 2012 elec­tion cycle and more than $174 million in the 2014 midterms. In the top 10 most compet­it­ive 2014 Senate races, more than 71 percent of the outside spend­ing on the winning candid­ates was dark money. These numbers actu­ally under­es­tim­ate the impact of dark money on recent elec­tions, because they do not include super PAC spend­ing that may have origin­ated with dark money sources, or spend­ing that happens outside the “elec­tion­eer­ing commu­nic­a­tions window” 30 days before a primary or 60 days before a general elec­tion.

Finally, because they can hide the iden­tit­ies of their donors, dark money groups also provide a way for foreign coun­tries to hide their activ­ity from U.S. voters and law enforce­ment agen­cies. This increases the vulner­ab­il­ity of U.S. elec­tions to inter­na­tional inter­fer­ence.

How can reformers address the consequences of Citizens United?

In the short term, a Supreme Court reversal or consti­tu­tional amend­ment to undo Citizens United is extremely unlikely, and regard­less, it would leave many of the prob­lems of big money in polit­ics unsolved. But even without a full reversal of Citizens United in the near future, there are policy solu­tions to help combat the domin­ance of big money in polit­ics and the lack of trans­par­ency in the U.S. campaign finance system.

First, publicly funded elec­tions would help counter the influ­ence of the extremely wealthy by empower­ing small donors. Specific­ally, a system that matches small-dollar dona­tions with public funds would expand the role of small donors and help candid­ates rely less on big checks and special interests. In recent years, public finan­cing has gained support across the United States. As of 2018, 24 muni­cip­al­it­ies and 14 states have enacted some form of public finan­cing, and at least 124 winning congres­sional candid­ates voiced support for public finan­cing during the 2018 midterm elec­tion cycle.

Lawmakers on the national, state, and local level can also push to increase trans­par­ency in elec­tion spend­ing. For example, the DISCLOSE Act, which has been intro­duced several times in Congress, would strengthen disclos­ure and disclaimer require­ments, enabling voters to know who is trying to influ­ence their votes. Congress could also pass stricter rules to prevent super PACs and other outside groups from coordin­at­ing directly with campaigns and polit­ical parties. 

Fixing the U.S. elec­tions system will also require fixing the FEC.

Long dysfunc­tional thanks to partisan grid­lock, the FEC is out of touch with today’s elec­tion land­scape and has failed to update campaign finance safe­guards to reflect current chal­lenges. For example, FEC rules do not even include the term “super PAC,” and it has declined to find viol­a­tions or even open an invest­ig­a­tion in high-profile alleg­a­tions of coordin­a­tion. The agency’s fail­ure to enforce federal disclos­ure laws helped allow dark money to pour into U.S. federal elec­tions since 2010.

In an April 2019 report, the Bren­nan Center outlined a number of struc­tural reforms that Congress can pursue to help tackle dysfunc­tion in the FEC. 

Finally, address­ing the impacts of Citizens United requires build­ing a move­ment in favor of campaign finance reform. There’s public support for such reforms. In recent polls, 94 percent of Amer­ic­ans blamed wealthy polit­ical donors for polit­ical dysfunc­tion, and 77 percent of registered voters said that “redu­cing the influ­ence of special interests and corrup­tion in Wash­ing­ton” was either the “single most” or a “very import­ant” factor in decid­ing their vote for Congress.

Citizens United was a blow to demo­cracy — but it does­n’t have to be the final word. Politi­cians can listen to what the vast major­ity of the public wants, even if big donors don’t like it.