Ten years ago exactly — on Jan. 21, 2010 — the Supreme Court gave the green light to unlimited political expenditures by corporations, labor unions and nonprofit groups. The decision in Citizens United v. FEC, which said curbs on such spending violated the First Amendment, fundamentally changed the way elections are financed today.
A decade later the majority opinion in Citizens United is labeled, more often than any other single thing, as the ultimate antagonist of the democracy reform movement. The ruling has become so infamous it's used as shorthand for a campaign financing system that gives lopsided political advantage to the wealthiest over everyday citizens, including for reasons that have nothing to do with that case. That said, however, the decision has permitted groups that are not affiliated with any candidate or political party to pour almost $4.5 billion into the subsequent campaigns for president and Congress — an astonishing six times the total for all such independent expenditures in the two previous decades.
The 10-year anniversary has campaign finance experts all along the ideological spectrum reflecting on what the decision has meant for American politics, and what changes to laws and regulations might withstand court challenges and limit the impact of Citizens United in the decade ahead — on the assumption the ruling is on the books for at least that much longer.
Sign up for The Fulcrum newsletter
Businesses didn't spend much more overtly, while a new actor stepped in
The conventional wisdom after the ruling was that the biggest corporations would suddenly play an overt and outsized role in elections because barriers to their spending had been dropped. But their direct contributions have remained relatively small.
Over the last four elections, corporations have accounted for just 6 percent of all contributions, according to the Center for Responsive Politics. The biggest spending year for businesses was 2016, but their $111 million total was still dwarfed by the $1.7 billion given by individuals, unions and nonprofits.
Instead, a new kind of political action committee became the spending behemoth. Known as super PACs, they are created independent from any candidates for office, and so they are permitted to receive as much as they want in the new generation of uncapped donations. And the way they in turn spend that money gives them huge influence over election outcomes.
"The emergence of super PACs," says Scott Blackburn of The Institute for Free Speech, a conservative organization that applauds the court's ruling as a victory for free speech, "has been the largest and most significant innovation of the Citizens United decision."
Companies found another way to have influence in 'dark money'
While corporations may not be spending much in the traditional sense, they have found a new, more mysterious, way to influence elections.
The ruling permitted not-for-profit groups with political agendas to accept unlimited donations from companies (and rich people) and spend the money on advertising that expressly supports or opposes a candidate. Because these nonprofits don't have to disclose the identities of their benefactors, this kind of political donation has been dubbed "dark money."
Since Citizens United, almost $1 billion has been spent by groups not subject to donor disclosure, according to the Center for Responsive Politics. And both parties have capitalized on the new era of dark money.
"While Republicans were quicker to embrace dark money groups than Democrats, political operatives in both parties are increasingly using opaque vehicles to funnel secret money into elections," said Michael Beckel, the research director of Issue One, which advocates for much more campaign finance transparency. (The Fulcrum is being incubated by — but is journalistically independent from — Issue One.)
Nonprofit organizations with political agendas (known as 501(c)(4)s because of where they're described in the tax code), law firms and other limited liability corporations, and other entities are often used as "pass-throughs for the purpose of concealing the true sources of spending," said Erin Chlopak, director of campaign finance strategy at the Campaign Legal Center, which promotes tighter money-in-politics regulation. "We have this phenomenon now of corporate nonprofits and other intermediaries being used to funnel money from one source ultimately to spending on an election."
Citizens United did stand behind disclosing who's doing all the new political 'speech'
In a part of the Citizens United majority opinion that gets much less attention than the 5-4 ruling about the constitutionality of unlimited spending, eight justices agreed that requiring transparency about who is doing all the new spending to influence elections would be appropriate.
"Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages," Justice Anthony Kennedy wrote in that section of opinion. (Clarence Thomas was the one justice who did not go along with that section.)
If there was a silver lining to the Citizens United case, this would be it, Beckel said. Chlopak and Ian Vandewalker, a campaign finance expert at the left-leaning Brennan Center for Justice, also pointed to this as one positive outcome of the case.
More federal laws to boost transparency look to survive Supreme Court scrutiny
What makes the court's statements about the merits of disclosure even more encouraging is that it puts Congress and state legislatures "on firm ground" to enact stronger election transparency requirements, Chlopak said.
One place to start, Beckel said, would be enacting legislation that's been pending without any votes on Capitol Hill for several years. The Political Accountability and Transparency Act, which has both GOP and Democratic backing, would require donor disclosure for political advertisements and strengthen rules against coordination to make sure that super PACs actually operate independently from candidates.
Another measure in Congress, which also has some bipartisan support but has seen no action, is the Disclose Act. It would increase reporting requirements for corporations, labor organizations, super PACs and other political entities.
And there are many provisions to tighten transparency regulations (including a version of the Disclose Act) in HR 1, the sweeping political process bill passed by the Democratic House last year but consigned to oblivion in the Republican Senate.
The Brennan Center's Vandewalker noted public financing of elections on the local, state or federal level is also a good solution to wealthy special interests' stranglehold on politics. Using public funds to match small donations gives "regular people the chance to compete with those big donors at the top" and "candidates who don't necessarily have wealthy connections the ability to run competitive campaigns without chasing big donors," he said.
There may be a silver lining in the decision even for its fiercest critics
"I can't think of a single positive thing that came out of that ruling," said Patrick Burwinkle, spokesman for the campaign finance group that signals its objective in its name: End Citizens United.
But, he conceded, the court case did help bring attention to the democracy reform movement. "After a decade of Citizens United, people are fed up with the way the system works and people want to fight back and people want to fix it," he said.
Before 2010, only a handful of organizations were working toward campaign finance reform. But Citizens United "shocked many people into realizing just how broken the political system has become," said Issue One's Beckel. "Today, Democrats, Republicans and independents overwhelmingly want more transparency in elections and a government that is more responsive to all Americans, not just wealthy special interests."
