Democracy has eroded in the decade since Citizens United

The past decade of living with the landmark Supreme Court decision in Citizens United versus Federal Election Commission has been unkind to American democracy. Every election since this 2010 decision allowing unlimited corporate and union spending in our political system has been more expensive than the last, flush with untraceable money and messier than ever before, and the 2020 election promises to be the worst yet.

It is frightening how much elections have been overtaken by a small core of unknown wealthy individuals from both ends of the political spectrum. Consequently, it is not surprising how many Americans have lost faith in our electoral system of governance. While monied interests have always had the upper hand in influencing government, their domination jumped leaps and bounds with the decision by the justices in Citizens United.

The Supreme Court had been wrestling with what was originally a small case filed by Citizens United, a group wanting to use corporate funds to advertise a documentary critical of primary candidate Hillary Clinton in 2008. The answer by justices went far beyond what Citizens United was asking and instead reversed a century of judicial precedent by ruling that corporations shall be treated as persons under the First Amendment and allowed to spend unlimited corporate money for or against candidates.

The impact on our elections was immediate. Spending by outside groups and corporations in the 2010 election cycle increased over the previous midterm elections, from $69 million to up $294 million. Justice Anthony Kennedy realized that the decision would increase campaign spending but assured everyone not to worry, as the excellent disclosure system in place would enable voters to avoid being suckered by special interest money and “give proper weight to different speakers and messages.”

But that excellent disclosure system had been dismantled by the Federal Election Commission a few years earlier. While nearly all electioneering groups previously disclosed the sources of their money, almost half of that new $294 million in campaign spending came from hidden donors. The term “dark money” came to describe the murky art of this new wave of secret financiers behind campaign ads. Years later Kennedy himself would concede that the system “was not working the way it should.”

Total costs of election spending continue to rise dramatically. According to the Center for Responsive Politics, the 2018 election reached more than $5 billion, and some estimates of the 2020 election already range from a staggering $8 billion to $10 billion. Worse than the spiraling cost is where the money is coming from. Just half of 1 percent of all Americans made a campaign contribution of $200 or more in the 2018 election. A tiny elite group of donors provided a full third of that money. The major donors generally live in Washington, New York, San Francisco, and Chicago.

The premise of Citizens United is limits on campaign spending can only be justified to avoid corrupting candidates, and that corruption is not a factor when spending takes place independently. Thus came about super political action committees. This reasoning invalidated the limit of $5,000 on donations to independent expenditure committees. Any corporation, union, or wealthy individual may make unlimited contributions to outside groups that funnel independent expenditures for or against candidates. Outside spending in elections has increased over the last decade to more than $1 billion, with the largest portion coming from super political action committees. Only 100 millionaires paid for most of this spending. These are the people financing the election of our president and Congress.

If you think donors to outside groups are not buying access, consider that most super political action committees are not actually independent of candidates. Super political action committees are often set up by former campaign staffers, and more than half of them spend all of their money supporting a single candidate, the same campaign tied to setting them up. Nearly every presidential candidate has his or her own super political action committee where wealthy donors who maxed out to the candidate can then spend unlimited additional amounts to support the campaign.

Citizens United has clearly changed who is paying to elect our lawmakers and to whom those lawmakers invariably feel a sense of debt. Free and fair elections may not have been a fully realized ideal in American democracy, but following Citizens United, many government officials must now rely on an ever smaller circle of very wealthy individuals and special interests for political survival. It leaves unanswered the key question asked by a House staffer during a briefing about the impact of the Supreme Court decision, “How do I say no to a deep pocketed corporate lobbyist who now holds the resources necessary to defeat my boss during the next election?”

Craig Holman is the government affairs lobbyist for Public Citizen. Roger Fleming is former Republican counsel to the House Judiciary Committee.