- Voting & Elections
Citizens United and Money in Politics
The Supreme Court decisions in Federal Election Commission v. Citizens United and McCutcheon v. Federal Election Commission have allowed big money to flood into elections. We may never know the full impact of these large and concentrated contributions on electoral outcomes.
The Bipartisan Campaign Reform Act
The Supreme Court decided Citizens United v. Federal Elections Commission, striking down parts of the 2002 Bipartisan Campaign Reform Act (BCRA). The BCRA, known as “McCain-Feingold” after its lead sponsors, had tightened previous laws to define and regulate “issue advocacy”—public communications about a candidate that are not officially part of the candidate’s campaign.
The BCRA stated that unions and corporations could not spend money directly on ads just before an election (engage in “electioneering communications”). If these groups wanted to broadcast ads about a candidate, they had to sponsor a political action committee (PAC) to buy the ads, and the PAC could accept only limited amounts from each donor. The limitations meant that, in order to amass a large sum of money, PACs had to promote a political agenda that was widely acceptable to a number of donors.
Changes from Citizens United and SpeechNow
What we’re concerned about is not the expression of ideas, but the exercise of undue influence on the outcome of elections.
Citizens United struck down the provision of the BCRA that limited the amounts of money groups could spend, making it possible for a corporation or union to spend unlimited funds directly on independent ad campaigns that support or oppose a candidate (to make “independent expenditures”). In the weeks just before an election, these entities were allowed to sponsor broadcast ads that could discuss a candidate, so long as they did not explicitly call for the candidate’s support or defeat.
In a related case, the 2010 appeals court decision in SpeechNow.org v. Federal Elections Commission said that a PAC that only made these kinds of independent expenditures and made no contributions directly to campaigns or party committees could not be limited as to the size of donations they received or the amount they spent. That’s how “SuperPACs” were born.
In Citizens United, the Supreme Court struck down only a small part of the BCRA. Most of the law is still in force. But this one change made it easier for corporations and unions to enter the political fray using their own treasuries and to select campaigns and campaign messages more narrowly tailored to the interests of their boards of directors, rather than to a larger field of donors. The change in SpeechNow extended the same favor to individuals who wish to pool their contributions for greater impact.
Frequently Asked Questions on Citizens United
Why Not Just “End Corporate Personhood”?
In the reactions to the Citizens United decision, which loosened certain restrictions on campaign spending, the idea of ending “corporate personhood” seemed, to some, to be the best solution. After all, why should a corporation enjoy the same constitutional rights as actual people?
In fact, ending corporate personhood misses the mark, by a good bit. It is both too broad and too narrow a goal, and it won’t reach the real problems.
It’s too broad.
Ending corporate personhood – or even just ending First Amendment rights for corporations – would mean that any corporation can be stopped from saying, or publishing, or supporting any idea.
Lockheed and Boeing could be prohibited from expressing their views on the importance of increasing military spending, but the United Nations Association, the ACLU, the New York Times, Pax Christi and the Friends Committee on National Legislation could also be prohibited from expressing or supporting the expression of ideas. Wal-Mart could be stopped from opposing health care reforms, and small businesses on Main Street could be prohibited from arguing for more job creation, in order to support their customer base.
That kind of law is way too broad. What we’re concerned about is not the expression of ideas, but the exercise of undue influence on the outcome of elections.
It’s too narrow.
The real problem is “independent contributions” (supposedly not coordinated with a candidate’s campaign) to pay for mass media ads. SuperPACs and political action committees can accept unlimited donations from anyone, if the donations are for the purpose of paying for mass media ads, independent of a candidate’s campaign.
Who funded these ads in the 2012 election cycle? It wasn’t for-profit corporations. Nearly 60 percent of SuperPAC funds came from 159 individuals who donated more than $1 million each. For-profit corporations donated just 12 percent. Banning for-profit corporations from such contributions would have very little effect.
It misses the mark.
The real problem is “independent expenditures” for mass media ads. Since these contributions represent individuals’ expressions of their views, they are much harder to limit. Recent Court cases declined to limit this type of contribution, because the justices believed that the independent contributions did not carry the same taint of corruption as the Courts saw in earlier cases of direct contributions to candidates. Supposedly, the candidate does not know who funded the independent ads in his or her favor, and does not grant special access or favors to the donor.
Of course corruption can take a much broader form than direct “buying” of politician. It can skew the democratic outcome of an election, and persuade an elected member of Congress to be sensitive to the concerns expressed in the ads – even if those concerns do not fairly represent the views of voters in his or district.
Why Not Simply Declare “Money Is Not Speech?”
If money – or spending – is not speech, the argument goes, then it will not have the protection of the First Amendment. Congress could then regulate spending to support or oppose a candidate. The logic is reasonable, but it has at least one of the same problems as the “corporate personhood” argument. It is too broad.
If money is not speech, then Congress – or a state legislature – could forbid the spending of money to support or oppose an idea. If people in Arizona who favor of immigrant rights wanted to take out a newspaper ad to oppose the state's anti-immigrant laws, they could be forbidden to do so, and they would have no First Amendment protection of that right. The Supreme Court has recognized, “Virtually every means of communicating ideas in today’s mass society requires the expenditure of money.” The broad ability to deny such spending would allow serious incursions on free speech.
Some spending should be banned or restricted. In adopting a law that would impose such restrictions in an election context, a legislature would have to be very careful to design restrictions in a way that would support fair elections, without suppressing the “marketplace of ideas.” But as the law now stands – as it has been interpreted by the Court – Congress and state legislatures will need a constitutional amendment to affirm that they have the authority to impose content-neutral limitations on private campaign contributions or independent expenditures, and that they are authorized to establish systems of public campaign financing.
What Needs to Happen?
Congress and the administration can take interim steps toward accountability and transparency – some of these steps are available under current law.
But for Congress to be able to address the individual donations that make up the bulk of “independent expenditures,” it will need the authority of a Constitutional amendment. The amendment should not describe a particular solution to the factual situation as we see it today, because facts change in every generation. Rather it should affirm the authority of Congress to impose content-neutral limitations on private campaign contributions or independent expenditures, and it should clarify Congress’s authority to enact systems of public campaign financing.
FCNL advocates for a constitutional amendment to give Congress the power to stop concentrated wealth from influencing elections. We also urge Congress to take steps to increase transparency and accountability and strengthen existing laws that preserve the integrity of our democratic process.