Five years after the Supreme Court handed down Citizens United, the decision continues to have a widespread impact on the state, federal, and even international level. As evidenced by the record spending 2014 mid-term elections, the unchecked influence of corporate and business interests through super PAC (Political Action Committee) donations has significantly altered the operation of American politics.
1. Elections are no longer influenced by people, but by money. And some people have a lot of money.
Before Citizens United, nearly half of all states restricted corporate spending in elections. Since the decision, these state level restrictions have been repealed or modified, opening the floodgates for corporate donations to state and local elections. Spending on state candidates for governor, attorney general, and even local school boards has reached record levels as corporations become increasingly aware of just how easy it is to influence local elections.
Corporate donations to super PACs have corroded the influence of local elections. The potential for just one donor to use his or her wealth to single-handedly alter an election in “pay-to-play” elections where only the well-connected can reasonably run for office is worrisome. If money is speech, then corporations clearly have more speech than real people.
2. Corporations enjoy unbounded spending—and thus unbounded influence.
Weak disclosure laws are problematic when combined with the enhanced abilities of single corporate donors under Citizens United. Single donors will max out contributions to candidates and then turn to super PACs to contribute even more. This raises concerns that candidates who directly solicit donations to super PACs are using the groups’ unbounded spending power to circumvent campaign finance limits, particularly when that super PAC supports a single candidate. A 2014 complaint filed with the Federal Election Commission (FEC) by the Campaign Legal Center illustrates how super PACs formed to support single candidates can be abused by those seeking to avoid campaign finance limits.
Americans have a growing distrust in the integrity of elections—with good reason. Corporations enjoy unbounded spending—and thus unbounded influence. There are essentially no laws tackling issues like candidate solicitation of super PAC donations. Candidates can raise vast sums of money for super PACs to spend, institutionalizing wealth-based elections for years to come.
3. It’s really, really easy to break the rules.
The law allows super PACs to engage in unlimited political spending as long as they operate independently of candidate campaigns. But illegal collaboration is difficult to prove and the rules are easy to skirt. Jeb Bush’s super PAC, Right to Rise, was formed this month with close involvement of the former Florida Governor. Jeb Bush is not yet a candidate in any race, so there can technically be no collaboration violation.
The subversion of weak campaign finance restrictions existed well before Citizens United, but it is a far greater cause for concern in the super PAC era. Candidates will always find creative ways to access the incredible spending power of super PACs; it’s just too tempting.
Practical regulation of collaboration has yet to take shape, but is not unworkable. A recent report by the Brennan Center for Justice recommends several practical solutions, a few of which are already taking shape at the state and local level.
4. Your voice is less important.
A recent academic study found that “majorities of the American public…have little influence over the policies our government adopts”. Corporate interests—not the interests of people—drive policy decisions.
Americans know this. Half of all Americans support radical changes to federal campaign finance, but almost every candidate supporting this cause was defeated in the 2014 mid-term elections.
In his “Lesterland” TED Talk, Lawrence Lessig pointed out two tragic statistics: 1) that the real number of American humans with influence on the government is only about 150,000—roughly the same number of Americans named “Lester”, and 2) 132 Americans gave 60% of super PAC money in 2012.
Citizens United opened the door for a fatal blow to our democracy. Regular people cannot match the unbounded spending on political advertising by wealthy elites. And when these wealthy elites enter office, they have no interest in taking action to curb funding. Why would they?
5. Your vote has been outsourced.
It is not just wealthy Americans using corporations to dominate elections. Foreign nationals are getting in on the action. Citizens United has made it easy for foreign money to influence political campaigns in the United States in violation of longstanding federal law. Last year, Jose Azano Matsura, a Mexican national and international businessman, was indicted for allegedly contributing approximately $500,000 to California candidates through a U.S. shell corporation.
Although large donors are supposed to be identified to the FEC, super PACs have found creative ways to get around weak disclosure laws. By accepting donations through a 501(c)(4), for example, a super PAC enjoys unlimited spending power, yet real funding sources remain anonymous. This provides a simple solution for foreign nationals eager to influence domestic policy.
The First Amendment protection arguments underlying Citizens United were not meant to defend the political speech of foreign nationals. But freewheeling judicial decisions have unintended consequences; Citizens United is no exception.
We can look forward to more PAC involvement in small local elections as corporate and business interest continue to attempt to establish favorable enclaves around the country by advocating for corporate tax breaks and cuts to public services like education and healthcare.
With single party control of Congress (thanks partly to Citizens United), there’s not much hope for campaign finance reform at the federal level. The ease with which PACs can make or break a state or local election prompts a dreary outlook for localized controls.
Happy birthday, Citizens United. You’re getting exactly what your critics feared and what your supporters always wanted.
This blog post was written by Sevren Gourley. Sevren interned at EarthRights in the winter of 2015 and is a first year law student at the University of Virginia School of Law.
Photo CC BY NC SA Brendan Hoffman