How Citizens United Has Changed Politics in 5 Years

Five years ago Wednesday, the Supreme Court handed down a decision that dramatically reshaped the business of politics in the U.S.

In its Citizens United v. Federal Election Commission decision, the court opened the campaign spending floodgates. The justices' ruling said political spending is protected under the First Amendment, meaning corporations and unions could spend unlimited amounts of money on political activities, as long as it was done independently of a party or candidate.

The result has been a deluge of cash poured into so-called super PACs – particularly single-candidate PACs, or political action committees – which are only nominally independent from the candidates they support. What’s more, the legal protections for corporations mean much of this spending, known as "dark money," never has to be publicly disclosed. 

A recent analysis of the 2014 Senate races by the Brennan Center for Justice found outside spending more than doubled since 2010, to $486 million. Outside groups provided 47 percent of total spending – more than the candidates’ 41 percent – in 10 competitive races in last year’s midterms.

"The premise that the Supreme Court was relying on, that these groups would be truly independent of the candidates themselves, is very questionable," says Commissioner Ellen Weintraub, one of three Democrats on the six-member Federal Election Commission.

Weintraub, who was appointed by President George W. Bush in 2003, has been a vocal advocate for establishing stronger disclosure rules to straighten out what she says is a contradiction in the court’s ruling.

The court effectively has said a donation of $1,000 does not, legally speaking, indicate a stronger association with a candidate than a donation of $10. So even when a candidate is aware of a huge donation to his or her single-candidate PAC, it’s not considered a problem.

"Plainly, if you worry about the corrupting influence of somebody making a million-dollar contribution directly to the candidate, the notion that the candidate can’t be corrupted by a million-dollar contribution that they know about to a super PAC that’s advocating solely on their behalf – it just doesn’t make sense to a lot of people," she says.

As the rules are currently written, these PACs are able to circumvent restrictions preventing them from directly coordinating with campaigns, even though they’re often run by members of candidates’ inner circles. Sometimes those efforts are literally laughable (remember #McConnelling?) as campaigns and PACs hide their unofficial coordination in plain sight, such as through public announcements of their plans for television ad buys or through out-of-the-way Twitter accounts.

Most advocates say the Supreme Court made a good-faith effort to promote transparency and prevent coordination in its Citizens United ruling.

But the contradiction between the court’s stated desire for transparency – eight justices joined the portion of Citizens United that upheld federal disclosure requirements – and its definition of corporations as people protected by the First Amendment created a loophole that campaigns and PACs are all too happy to use to their advantage.

As a result, a small group of wealthy donors has gained even more influence on elections, and are able to maintain that influence once candidates take office.

Of the $1 billion spent in federal elections by super PACs since 2010, nearly 60 percent of the money came from just 195 individuals and their spouses, according to the Brennan Center report. Thanks to Citizens United, supporters can make the maximum $5,200 donation directly to a candidate, then make unlimited contributions to single-candidate super PACs.

Campaign reform advocates say the amount of money spent is not inherently a problem; rather, it's the fact that a tiny number of extraordinarily wealthy individuals are bankrolling the majority of that spending.

"We have folks that are essentially using million-dollar megaphones to drown out the voices of ordinary citizens," says Adam Lioz, a senior adviser at the liberal policy group Demos. "These millionaires are kingmakers in our democracy."

A Demos report released last week found winning Senate candidates in the 2014 races had to raise an average of $3,300 per day, every day, for six years (House candidates needed to raise $1,800 a day in their two-year cycle). The pressure to fundraise means candidates focus on those donors who can provide large donations, to the detriment of their less wealthy constituents.

"When you’re talking to the same kinds of people for six to eight hours a day, when you do call time and dial for dollars, you begin to believe that their problems are the country’s problems," Lioz says. "You get a skewed and warped view of the way the world works, and it’s not because you’re a bad person or you’re corrupt, it’s because you’ve been placed in a very narrow and very wealthy world."

While this is not a phenomenon solely of Citizens United’s making, it has become a much more urgent issue in the past five years as people feel their voices – and their votes – are being drowned out.

At a Senate hearing last year, supporters delivered petitions with 3 million signatures calling for a constitutional amendment to undo the effects of the ruling, and 16 states have passed resolutions demonstrating the ability to ratify such an amendment.

The groundswell of support has spread beyond conventional clean governance groups to labor, environmental and other advocacy groups – an effect Rep. John Sarbanes, D-Md., calls the "soundcheck on the microphone."

"If you’re standing in front of many audiences these days, if you don’t start by saying, '… I know you feel locked out,' most of the rest of what you want to say to people they’re not going to hear," he says.

Sarbanes is the lead sponsor of the House's Government By the People Act, which would put a small-donor matching program in place for federal elections. Candidates would pledge to take no donations over $1,000 and give up traditional PAC money, and in exchange receive matching funds for donations under $200, provided at least in part by voluntary contributions from taxpayers.

He says conservative estimates found about 80 percent of successful 2014 candidates would have raised more money though small-donor matching, if the program had been in place.  

"I could say to [my constituents] and mean it, 'If you donate $25 to my campaign, you’re actually going to have an impact,'" Sarbanes says. "And if you get 15 or 20 or 30 of your friends to come do the same thing, I have incentive now to spend some time with you, instead of calling some high donor on the phone or going to some K Street fundraiser, so that’s real power."

Sarbanes will reintroduce his measure Wednesday afternoon in the House, where it already has 138 co-sponsors. A similar bill, the Fair Elections Now Act from Sen. Dick Durbin, D-Ill., also will be reintroduced in the Senate and has 19 co-sponsors. 

As with any current legislation, the sponsors recognize the uphill battle in a Republican-controlled Congress. So far, all but one of the bills' co-sponsors are Democrats (along with left-leaning Sen. Bernie Sanders, I-Vt.). Funding a donation-matching program also poses another obstacle toward passage, as proponents have suggested closing the same tax loopholes that Democrats have targeted for years.

But Sarbanes says he's hopeful he’ll be able to convince Republicans whose constituents support campaign finance reform, especially those like Rep. Dave Brat – a Virginia freshman who defeated Eric Cantor on a message that the former majority leader was too beholden to his Washington inner circle – or Sen. Ted Cruz, R-Texas, who emphasized that "D.C. isn’t listening" in his 2013 filibuster.

"It may take a while for Republicans here to catch up in terms of getting behind specific reforms that will address this sentiment, but I think increasingly they’re going to be feeling the heat from their own constituents," Sarbanes says. "If they know what’s good for them politically, they’re going to start adopting a lot of these narratives."