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Citizens United Five Years Later

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.

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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 causedIn 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.newre­pub­­burg-inter­view-retire­ment-femin­ists-jazzer­cise.

[ii] Press Release, Move to Amend, Elec­tion Shows Amer­ic­ans Ready to Amend the Consti­tu­tion (Nov. 5, 2014), avail­able at https://movetoa­­tion-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.