Editor’s Note: This is a guest commentary. The opinions do not necessarily reflect the views of the editorial board.
Ever heard of the U.S. Supreme Court case Citizens United v. Federal Election Commission? The case made headlines when it was decided more than a dozen years ago, and because of its corrosive effect on our elections, it still makes headlines. One example is the news that recently emerged about disgraced crypto CEO Sam Bankman-Fried secretly giving $1 million in 2020 to republican-backed election campaigns under the cover Citizens United created. More on that in a minute, but first an explanation.
In Citizens United, the Court, by the narrowest 5–4 margin possible, struck down bi-partisan campaign finance laws and gave a green light to the unlimited campaign contributions from corporations and billionaires we see today. Citizens United also paved the way for dark money, contributions meant to influence an election outcome without disclosing its source.
How can five justices control our laws? By design, the U.S. Constitution creates an independent judiciary with the power to strike down laws that conflict with the Constitution. Sometimes we cheer the results, as many did when the Court in 1954 invalidated segregation laws in Brown v. Board of Education, and more recently as the Court did in Obergefell v. Hodges (2015) declaring unconstitutional state laws prohibiting same-sex marriage.
But in the case of Citizens United, the ones cheering were those extremely wealthy individuals and corporations that aimed to influence elections. They cheered because five out of nine justices agreed that corporations have free speech rights, equivalent to a flesh and blood human, and were protected by the First Amendment. What’s more, five of the nine agreed that corporate dollars spent on elections are an expression of that free speech right. So, having characterized corporate campaign spending as a highly-protected fundamental right under the Constitution, the Court did, and in the future is likely to, strike down laws attempting to restrict that right.
Today, this leaves us with almost totally unrestricted ad buying and other “electioneering activity” during election cycles. (Get ready for it. The 2024 cycle will be here before we know it.) “Unrestricted” means that not only is the amount unlimited, but the source is undisclosed. These unrestricted contributions cannot be made directly to the candidate’s campaign. Instead, the money must go to so-called “outside groups,” for example Super PACS, labor unions or other advocacy groups. Spending by outside groups has exploded since Citizens United opened the floodgates: from roughly $340 million in 2008, the last presidential election year before the decision, to nearly $3 billion in 2020.
If these dollar amounts were not disturbing enough, add the fact that over a hundred million of that $3 billion spent in 2020 is “dark money.” The creation of shell corporations and use of the 501(C) structure allows the donor’s identity to remain a secret, though the candidate recipient often knows. Wealthy individuals and interest groups are able to covertly pay to play, as in the Sam Bankman-Fried example above. Even foreign nationals have used shell companies to funnel money into U.S. elections.
Our election laws were not always as unregulated as this. For 100 years, before Citizens United, there were restrictions. The Tillman Act of 1907 was the first legislation in the U.S. prohibiting corporate contributions to national political campaigns. First Amendment challenges to that law and others failed in the decades prior to Citizens United. So, when the Court decided on Citizens United it overturned decades of precedent.
Looking forward, both Congress and state legislatures are proposing laws, like the DISCLOSE Act in the Senate, to rein in outside spending and dark money. Alternatively, as the makeup of the Supreme Court changes over time, so will its take on campaign finance restrictions. Laws that are unconstitutional today can turn out to be constitutional tomorrow, as we just witnessed with abortion bans. All of these changes require informed and active citizens. So, arm yourself with knowledge, and make your case.