Revisiting the Historic Citizens United v. FEC Decision for the 2016 Elections

By Jared Finkel

One year from election day, the 2016 presidential race is fully underway. This campaign is already featuring historic levels of spending as candidates are doing everything they can to get their message across to voters in early primary and swing states. Since these campaigns, with the exception of one, are not self-funded, we must ask the question: who is footing the bill?

The Case

In 2009, the Supreme Court heard arguments for the landmark Citizens United v. FEC case that fundamentally changed how we elect our government officials. The issue at hand was whether it is constitutional for large corporations, labor unions, other associations, and to some degree, groups of high-income individuals, to be able to expend mass amounts of money to aid candidates running for office.

After hearing the arguments, the Supreme Court ruled in favor of admitting the right of campaign financing to said groups by a vote of 5 to 4. The majority opinion, written by Justice Anthony Kennedy, states that through the eyes of the Constitution, individuals and groups of individuals are indistinguishable. Through this non-distinction, the federal government has no jurisdiction over restricting the First Amendment rights of corporations. Therefore, independent expenditures by corporations on elections should have no constitutional restrictions. On the other hand, the ruling had no implications on the federal ban on corporations donating directly to political parties and/or candidates. This remains prohibited. Once the Supreme Court delivered its verdict, all local and federal laws prohibiting the right of corporations to political spending were repealed. 24 states were legally obligated to do so.

Impact

One direct implication of Citizens United is the creation and vast expansion of Super PACs. Super PACs are political action committees that accept individual expenditures to help support a political cause, candidate, or party of a group of individuals. Via further court cases, restrictions to the amount of money an individual can donate to a Super PAC were sought, but to no avail: The Supreme Court upheld the First Amendment rights of individuals and corporations to spend on political campaigns without restriction.

Under the federal ban, Super PACs are restricted from direct donations to political candidates or parties. However, candidates have the ability to create affiliated Super PACs, effectively undermining the federal ban on direct corporate spending to political candidates. By using the First Amendment rights upheld by Citizens United, candidates have the ability to procure endless amounts of money to finance their campaigns.

Super PACs have now become the status quo in elections. Out of the 18 nominees running for POTUS, 16 have affiliated Super PACs, and all of them have unaffiliated Super PACs. The total number of Super PACs (directly affiliated and unaffiliated) is 45. Out of these donations, the percentage of the population that donates $200 or more is 0.23%. Despite only 0.23% of the population donating more than $200, this money constitutes 66.6% of the total campaign contributions of “individual contributions” to federal candidates (numbers and percentages are from 2014 only).

Also, the distinction between union donors and non-union donors is of importance. Unions are a collective that advocate for the rights of the many specific sectors of workers across the country. Generally, non-union donors are a collective of few that advocate for the few, thus decreasing the role of the average American in elections with the increase of donations from said collectives. Of the ten organizations that spent the most towards campaign financing in 2014, five are non-unions (1. Fahr LLC, total contributions: $75,279,259, 2. ActBlue, total contributions: $68,026,527, 4. Bloomberg Lp, total contributions: $28,708,538, 5. NextGen Climate Action, total contributions: $24,574,615, 10. Elliot Management, total contributions: $14,199,672). Of those five that are non-unions, three serve no political purpose and are essentially small groups of individuals.

Conclusion

In the majority opinion, Justice Kennedy wrote that the previous legislation on corporate political spending “muffle[d] the voices that best represent the most significant segments of the economy.” While this may be true, these voices do not represent the significant segments of the constituency that are most affected by policy: people in the lower and middle income brackets. For instance, every year Social Security is revisited and increased for the annual cost of living. This year, for only the third time since 1975, there will be no increase, whereas the average salary of CEOs of the top 350 American companies increased by 3.9%. To make matters worse, the aforementioned pay increase was partly subsidized by the taxpayers. This policy most affects the 9 million veterans on Social Security, two-thirds of seniors who rely on Social Security for most of their income, and the 15 million people where Social Security brings them above the poverty line. The people affected by this policy are the many, not the few who make up significant portions of our economy. Citizens United muffled their voices.

Too often, elections are won or lost by the relative size of one campaign’s resources.  The more a candidate can advertise and campaign, the more he or she can reach and win over target populaces in paramount districts across the nation. Political campaigning is an expanding sector of elections where candidates are not financially able to support themselves. Unfortunately, modern-day candidates flock to corporations to obtain an incredibly large proportion of their political donations.

As many observers have noted, this leads to a conflict of interest where candidates feel as if they need to pursue these corporations’ political initiatives to maintain financial support, or pursue these corporations’ political initiatives to obtain financial support. This is a fundamental flaw in our election system where corporations are encouraged to have a larger role in policy as the role of everyday working Americans is diminished. This issue might be exacerbated in future elections as the United States sees historic, growing levels of income inequality.

The very basis of democracy in the United States is the concept of one person, one vote.  If we have a system where two people are permitted to have the political impact of donating $900 million, then something is wrong. The political role of the demos should be a right, not a privilege.