"If there was one decision I would overrule, it would be Citizens United. I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be. So that's No. 1 on my list."
Ruth Bader Ginsburg
Note: This blog was published as "Repeal Citizens United" and then the title was changed to "Supreme Court Screwup" to reflect how the law was passed in January 2010.
US campaign-spending laws prohibited organizations from financing election campaigns in the past. In 2007, the conservative lobbying group Citizens United filed a complaint in District Court about the constitutionality of campaign-funding restrictions. That gave the case its bizarre name.
In reviewing the petition, the Supreme Court decided that rather than focus on specific instances on a case-by-case basis, it must consider the broader issue of political speech as it relates to the First Amendment which guarantees freedom of speech.
In January 2010, the US Supreme Court ruled 5-to-4 to allow corporations and unions to fund political campaigns. The 4 dissenters held that this would corrupt democracy. The winning 5 votes said that the government could not regulate political speech by limiting election funding. (1)
The downside of the new law is that the definition of organizations as individuals protected by the First Amendment created a loophole: Unions and small groups of wealthy donors can exercise too much influence on elections and maintain that influence after candidates take office. This ruling has reshaped the way elections are conducted. We have already witnessed the takeover of American politics by special interests.
Supreme Court Opinions
Supreme Court Justice Anthony M. Kennedy’s majority opinion invited a shareholder solution, “through the procedures of corporate democracy”. In his ivory tower, he was naïve and mistaken; shareholders have very little power over the corporate executives who control donations. They certainly don’t control ultra rich donors.
Justice John Paul Stevens served in the Supreme Court for nearly thirty-five years. Before he retired in June 2010, one of his last acts was to read aloud a summary of his scathing dissent of he Citizens United decision. He stated repeatedly that corporations “are not themselves the ‘We the People’ by whom and for whom our Constitution was established.” To read the decision aloud was noteworthy; justices only do so for cases they believe have special merit. Justice Stevens correctly understood then that Citizens United was wrong. (2)
In an interview with the New Republic, 81-year-old Justice Ruth Bader Ginsburg said that the Court’s ruling she would most like to overrule was Citizens United because “it strays so far from what our democracy is supposed to be.” (3)
PACs and Super PACs
Previously, Political Action Committees (PACs) were organized to raise and spend money to elect and defeat candidates. Money came from voluntary contributions and most PACs represented business, labor or ideological interests.
Technically known as independent expenditure-only committees, Super PACs may raise unlimited sums of money from corporations, unions, and individuals, and then spend unlimited sums to overtly advocate for or against political candidates.
Unlike traditional PACs, Super PACs are prohibited from donating money directly to political candidates, and their spending must not be coordinated with that of the candidates they benefit. The result has been a deluge of cash poured into Super PACs that are only nominally independent from the candidates they support.
Super Pac spending, known as "dark money," never has to be publicly disclosed. Of the well over $1 billion spent in federal elections by Super PACs since 2010, nearly 60% of the money came from just 195 individuals and their spouses.
Big Money in Politics
After the new law was passed, political spending skyrocketed. The 2010 elections saw a record-breaking $489 million spent by outside groups – 450% increase over 2006.
Super PACs emerged as a major influence in 2012 US politics. Conservative groups, including a Super PAC led by Karl Rove and another group backed by the Koch brothers, spent more than a billion dollars trying to take down Barack Obama. (4)
The total price tag for the 2014 election was nearly $4 billion, the most expensive midterm election in history. It set the stage for the 2016 presidential contest that could approach double-digit billions in spending. (5)
A New York Times analysis of the 2016 presidential campaigns shows that 156 families are responsible for more than half the money raised. As of April 27, 2016, 2,265 groups organized as Super PACs have reported total receipts of over $700 million and total independent expenditures of over $300 million in the 2016 cycle. (6) The Sunlight Foundation reported that, “1% of the 1% controls 28% of the political discourse in America.”
According to an analysis by U.S. PIRG Education Fund, 83.7% of higher fundraising candidates have won their congressional primaries so far in the 2016 election cycle. Candidates who lack the backing of mega-donors or vast personal wealth cannot keep up with their big money rivals.
What goes on in Washington is more about moneymaking than lawmaking. The fundamental purpose of government is being lost in the quest for power and money. Nothing is sacred under this system – political donations are extorted from every industry. In the law’s current condition, the line is blurry between the exercise of constitutional rights and criminal behavior.
In his new book, Extortion: How Politicians Extract Your Money, Buy Votes, and Line Their Own Pockets, Peter Schweizer, argues that politicians have developed a new set of legislative tactics designed to extort from wealthy businesses and compel donors into forking over huge amounts of cash that is often funneled into pockets of friends and families. Schweizer’s book delivers hard, documented facts. (7)
President Obama was an early critic of the Citizens United ruling, calling it a "threat to democracy" and a "victory for Wall Street and Big Business." He criticized the ruling in his 2010 State of the Union address, saying that it would allow "special interests – including foreign companies – to spend without limit in our elections."
With Republican-backed Super PACs eclipsing them in fund-raising, Democrats felt they were left with no other option than also to utilize Super PACs. The 2012 presidential campaigns clearly illustrated that all the candidates pushed the limits of campaign finance regulations. (8)
Both Hillary Clinton and Bernie Sanders say that opposing Citizens United should be a litmus test for the next Supreme Court justice, and both support a constitutional amendment to overturn it.
Small Donors Dominate
The cost of securing future donations is much lower for candidates relying on a base of small donors. Sending out email appeals is almost free. As the campaign drags on, candidates with databases full of confirmed, donating supporters, can bring in money from those donors over and over again. Internet commercials incur only the costs to post on websites, which is much cheaper than TV advertising. Supporters can share messages through social media. (9)
As the current election process proceeds, the advantage probably goes to the candidates with a large base of small donors. Bernie Sanders has shunned Super PACs, raising money from individual, small donors – the well publicized, “$27 average contribution”. Bernie has shown that candidates without deep-pocketed supporters can still compete on a relatively even field.
A new Citizen Super PAC is striving to empower Americans by providing the first crowdsourcing platform where voters can select and financially back specific ads for the candidates, and the issues they support. Their stated aim is to enable every citizen to have as much political influence as the 1%, without a personal fortune and an army of lawyers. A worthy aim, but it remains to be seen whether they will have major impact.
Amending the U.S. Constitution is a clear, permanent solution to curbing the undue influence of money on our democracy. A constitutional amendment would overturn the flawed Supreme Court decision and restore the right to protect the government from being captured by private, wealthy interests. Most of the American electorate truly wants government of the people, by the people, and for the people.
President Obama has indicated his support for a constitutional amendment to repeal Citizens United. Presidential hopefuls Hillary Clinton, Bernie Sander, and more than 200 former and current members of Congress have also declared their support.
The American public has begun to realize that billionaires can buy elections. Polls show there is wide discontent about the perceived influence of big money in US politics and the growing gulf between the countries’ very rich and very poor. (10)
There are signs of a pushback. Voters across party lines overwhelmingly support a constitutional amendment to overturn the decision and curb the influence of money in politics.
A national grassroots movement is developing. More than 5 million people have already signed petitions in support of a constitutional amendment to overturn Citizens United. You too can join the millions of Americans who've told their lawmakers to amend the Constitution and overturn Citizens United! (11)
Citizens United is wrong. It must be repealed by a constitutional amendment.
Please provide your own feedback, comments and suggestions. Share our discussion by responding to these questions directly via the blog. If you prefer, send me an email and I’ll insert your comments.
- What is your view of Citizens United? Are you for, against, or haven’t really thought about it?
- Are you Republican, Democrat or Independent? Does that affect your opinion?
- Can you provide any arguments in support of Citizens United?
- Who is your preferred candidate in the 2016 Presidential Election? Can you summarize your reasons?
- Have you signed up to repeal Citizens United? Will you? If not, why not?
- Please add your own comments and suggestions.
- Citizens United v. Federal Election Commission: http://goo.gl/EVlbSg
- Citizens United Attacks From Justice Stevens: http://goo.gl/euhYas
- Ruth Bader Ginsburg - Citizens United Is the Worst Ruling: http://goo.gl/5fsq7B
- Citizens United Has Changed the Political Game? http://goo.gl/SVEZBZ
- 2012 Election Will Be Costliest Yet: http://goo.gl/UcUo1M
- Elections 2014: The Most Expensive Midterms Ever: http://goo.gl/xOz7DP
- Book - Extortion: How Politicians Extract Your Money: http://goo.gl/SA3ttq
- Which Presidential Candidates Are Winning Money Race: http://goo.gl/0S5Ai2
- Campaign Donation Limits Are Irrelevant: http://goo.gl/s6c05f
- U.S. billionaires may not be able to buy the 2016 election: http://goo.gl/eBwMnO
- Signup to overturn Citizens United: https://goo.gl/IJFH4Y