By Jack | 4/24/20
Money’s influence on politics has changed greatly in recent history, with each new landmark case and law shaping the roots of our democratic process. In the last 17 years, the Supreme Court ruled on many cases involving campaign financing and political spending; the most relevant being McConnell v. FEC in 2003, Randall v. Sorrell in 2006, Wisconsin Right to Life v. FEC in 2007, Davis v. FEC in 2008, and finally, Citizens United v. FEC in 2010.
With each court case after McConnell v. FEC, the rules and regulations around money in politics have been whittled down, leading to a huge increase in political spending. The McConnell v. FEC case was in response to the McCain-Feingold Bipartisan Campaign Reform Act passed in 2002 under the Bush administration (Fuller)(Cruikshank). The BCRA was one of the first major acts targeted at regulating campaign financing (Fuller). The two main issues the act aimed at regulating were “soft money” and “issue advocacy” (“Bipartisan Campaign Reform Act”). “Soft money” is the term used to describe money spent in the political domain, but not specifically used to support or endorse a certain candidate. Because the money’s stated intent was not to sway elections one way or the other but to inform voters and encourage them to vote, it was not subject to federal law, and largely unregulated until the BCRA (“Bipartisan Campaign Reform Act”).
However, political parties simply used the money to fund ad campaigns criticizing a candidates voting record and indirectly influencing an election (“Soft money”). Seeing this, the BCRA sought to “end the use of soft money in federal elections.” The BCRA also had provisions to stop corporations and unions from using their money to fund “issue advertisements,” ads that explicitly mention a candidate within a certain period of time from an election (“CITIZENS UNITED V. FEC: CORPORATE POLITICAL SPEECH”)(“Bipartisan Campaign Reform Act”).
Soon after being signed into law, the act was challenged by Sen. Mitch McConnell, the NRA, and other organizations (Fuller). In his lawsuit, McConnell claimed that the act violated the First Amendment’s protection of freedom of speech. The court ruled 5-4 in favor of the FEC in the majority of the decisions, only choosing to overturn minor parts of the law (“McConnell v. Federal Election Committee”). However, most of the provisions were later struck down in 2010 in the Citizens United v. FEC case. The Randall v. Sorrell supreme court case was a case involving a Vermont law that limited independent expenditures, the use of money to advocate for or against a certain candidate without coordinating with anyone in the political process.
The Supreme Court ruled 6-3 that the law was unconstitutional and violated the First Amendment (“Randall v. Sorrell”). This case marked a turning point in campaign finance reform, as every Supreme Court ruling following this weakened the rules put in place by the BCRA, and greatened the influence money had on politics. In the next two cases involving campaign finance, WRTL v. FEC and Davis v. FEC, the Supreme Court rolled back more and more provisions from the BCRA and previous campaign funding regulations (Cruikshank)(Fuller). But these cases were like drops in the ocean compared to the impact Citizens United v. FEC had.
The 2010 Supreme Court Citizens United v. FEC ruling, set a new precedent for campaign finance, while overturning much of the BCRA and previous campaign finance legislation.
In 2008, Citizens United, a conservative ideological group whose purpose is to spread certain political messages, released a documentary called “Hillary: The Movie.” Because it featured Hillary Clinton, and was released less than 30 days from the Democratic Primary, it qualified as an “issue advertisement” (“CITIZENS UNITED V. FEC: CORPORATE POLITICAL SPEECH”)(Raja). While Citizens United was a non-profit, it received money from for-profit corporations, and by using that money to pay for the documentary, they were in violation of the Bipartisan Campaign Reform Act.
Citizens United challenged the constitutionality of that part of the BCRA, arguing that by restricting the way corporations can use their money to spread political messages, the government is violating their First Amendment right to Freedom of Speech (“CITIZENS UNITED V. FEC: CORPORATE POLITICAL SPEECH”). In a 5-4 decision, split along party lines, the Supreme Court overturned the provisions in the BCRA that limited the amount of “soft money” corporations could spend on “issue advertisement” and other independent expenditures (“Citizens United v. Federal Election Committee”). This provision of the BCRA was a key part of the act and the ruling weakened it significantly, leading to an explosion of political spending in recent years (Raja).
Following Citizens United, the issue of money influencing politics has increased greatly despite efforts to subdue the problem. The amount of political spending has quickly gotten out of hand, with each election cycle since 2010 breaking election spending records. There has also been a sharp increase of “dark money” since Citizens United, or money from undisclosed groups and individuals that is impossible to track. However, perhaps the largest change in political spending since Citizens has been to mega-donors, individuals who donate exorbitant amounts of money to attempt to influence elections.
In 2010, pre Citizens, an individual could donate just $7.6 million, because of the strict rules limiting the amount one person could donate. However, post Citizens, that number ballooned to over $92 million in 2012, as individuals could simply funnel their money through a super PAC into the political domain (Arke). A super PAC is a type of Political Action Committee that has no limits on how/where it raises its money from, but it is not allowed to directly contribute to or coordinate with a campaign. A regular PAC has limits on how much an individual can give and who can contribute, but it can give that money directly to a campaign (“PAC Vs. Super PAC”)(Arke).
In response to the ruling, many Democratic lawmakers have attempted to pass legislation to control this problem. In 2010, Senate Democrats repeatedly attempted to pass the “Disclosure Act,” a bill that would have had stricter requirements on the disclosure of contributions from corporations and other groups, but were defeated by Republicans and business groups who lobbied against the bill (Eggen). House Democrats tried to pass the “Fair Elections Now Act” in 2010 and 2013, but that too was killed and never became a law (Boyle). In 2014 and 2019, Democrats attempted to pass the “Democracy for All Amendment” that would effectively overturn Citizens United and previous rulings, but were blocked by Republicans in the Senate (Everett). However, lawmakers aren't the only people fighting this problem.
A website called “Opensecrets.org” is a site dedicated to collecting data and information about money in politics, and sharing it with Americans to empower and educate the population. It was started by the Center for Responsive Politics, a “nonpartisan, independent, and nonprofit” organization whose objective is to “track money in U.S. politics and its effect on elections and public policy.” The CRP is attempting to fight this problem by educating citizens and bringing awareness to the issue (“About opensecrets.org”). However, awareness alone will not bring political change. Many politicians, such as Bernie Sanders and Hillary Clinton, advocate for the overturning of the Citizens ruling, as well as previous rulings that weakened the BCRA. But with the appointment of young, conservative judges to the Supreme Court that solution may not be very realistic (Overby).
There are still ways we can fight this problem. While this problem is for the most part in the political domain, it may seem like as an individual, your voice won’t be heard and it’s not possible to have an impact. However, there are ways for you to create change and help solve this problem.
- If you are fortunate enough to be in a stable financial position, consider donating to an organization or campaign combating this problem. To stay unbiased and independent, many organizations like Opensecrets.org have to rely on contributions from readers to stay running and to keep fighting for democracy and fairness in our political system. In addition, Democrats need a strong majority in the House and Senate to pass legislation to fight this injustice, so donating to a democratic candidate’s campaign in a battleground state like Texas or Maine for the House and Senate is also an effective way to contribute.
- Communicate with your state and county representatives and urge them to push for democratic legislation. Sites such as Commoncause.org can help you get in touch with your representatives and make sure your voice is heard. They have tools to help you prepare a strong, concise message that will encourage your legislator to combat this issue.
- Stay informed. The most important thing you as an individual can do is to stay educated and aware of the issues going on. Subscribing to newsletters from nonpartisan, reputable sites like the New York Times or the Wall Street Journal can keep you informed about this issue. Be an educated citizen who can actively engage in politics and defend your rights.
- Nullify the Citizens ruling by ratifying the “Democracy for all Amendment.” The amendment would allow Congress to differentiate between people and corporations, voiding the Citizens ruling by taking away corporation’s freedom of speech. This amendment would be more effective than simply overturning Citizens, as it also essentially overturns the previous Supreme Court rulings, and closes the door for similar rulings in the future.
- Enact stricter disclosure legislation such as the DISCLOSE Act. Require organizations and Super PACs to disclose the identity of all donors who have contributed more than a certain threshold (this number would be subject to change to appease the Republican politicians to gain enough votes). This would expose the dark money donors and allow for more transparency in the democratic process. It would also create a level of accountability for the corporations and organizations that spend exorbitant amounts of money to influence politics.
- Restructure the campaign finance structure to give every citizen an opportunity to have a real impact in the democratic process. With our current system, the top few donors are able to “drown out” the rest of the population by contributing huge amounts of money. By implementing a system like in New York City (page 20), where public funds match small campaign contributions by 6 to 1, citizens will have more representation, and candidates won’t have to pander to large corporations for funding. Another possible system is the one currently being used in Seattle, where every citizen is given $100 worth of “Democracy Vouchers,” which they can give to their candidate of choice, allowing every citizen to be able to participate in the democratic process and have their voice heard.
“About OpenSecrets.org.” OpenSecrets.org, www.opensecrets.org/about/.
Arke, Karl. “A Look at the Impact of Citizens United on Its 9th Anniversary.” OpenSecrets News, 22 Jan. 2019, www.opensecrets.org/news/2019/01/citizens-united/.
“Bipartisan Campaign Reform Act.” Ballotpedia, ballotpedia.org/Bipartisan_Campaign_Reform_Act.
Boyle, Andrew. “The Fair Elections Now Act.” Brennan Center for Justice, 2009, www.brennancenter.org/our-work/analysis-opinion/fair-elections-now-act.
“CITIZENS UNITED V. FEC: CORPORATE POLITICAL SPEECH.” Harvard Law Review, vol. 124, no. 1, 2010, pp. 75–82. JSTOR, www.jstor.org/stable/20788313. Accessed 4 Apr. 2020.
“Citizens United v. Federal Election Commission.” Oyez, www.oyez.org/cases/2008/08-205.
Cruikshank, Brian, and Katy Owens Hubler. “Campaign Finance and the Supreme Court.” National Conference of State Legislatures, 17 July 2015, www.ncsl.org/research/elections-and-campaigns/campaign-finance-and-the-supreme-court.aspx.
Eggen, Dan. “Senate Democrats Again Fail to Pass Campaign Disclosure Law.” The Washington Post, WP Company, 24 Sept. 2010, www.washingtonpost.com/wp-dyn/content/article/2010/09/23/AR2010092304578.html.
Everett, Burgess. “Campaign Finance Reform Blocked.” POLITICO, 12 Sept. 2014, www.politico.com/story/2014/09/senate-block-campaign-finance-amendment-110864.
Fuller, Jaime. “From George Washington to Shaun McCutcheon: A Brief-Ish History of Campaign Finance Reform.” The Washington Post, WP Company, 4 Apr. 2014, www.washingtonpost.com/news/the-fix/wp/2014/04/03/a-history-of-campaign-finance-reform-from-george-washington-to-shaun-mccutcheon/.
“McConnell v. Federal Election Commission.” Ballotpedia, ballotpedia.org/McConnell_v._Federal_Election_Commission.
Overby, Peter. “Fact-Check: Clinton And Sanders On Campaign Finance.” NPR, NPR, 6 Feb. 2016, www.npr.org/2016/02/06/465781632/fact-check-clinton-and-sanders-on-campaign-finance.
“PAC Vs. Super PAC.” OpenSecrets.org, www.opensecrets.org/pacs/pacfaq.php.
Raja, Raymond. “Will Citizens United v. FEC Give More Political Power to Corporations?” Will Citizens United v. FEC Give More Political Power to Corporations?, July 2010.
“Randall v. Sorrell.” Oyez, www.oyez.org/cases/2005/04-1528.
“Soft Money.” OpenSecrets.org, www.opensecrets.org/resources/learn/glossary.php#S.