Five years later: Citizens United v. Federal Elections Commission

Scot Schraufnagel
Scot Schraufnagel

On Jan. 21, 2010, the U.S. Supreme Court ruled that political spending is a form of protected speech. Five years later, NIU political science professor Scot Schraufnagel examines the playing field since then.

Money has always been a part of election campaigns in the United States – perhaps more so in this country than in pseudo-democracies, when elections are not competitive, or in parliamentary systems, which often lack set election dates.

In the earliest days, money in campaigns looked a lot like bribery. Candidates for public office (including George Washington) would bestow gifts on would be supporters to gain their votes.

Fast-forward to the late 19th century, and it was common for a single wealthy industrialist to bankroll the entirety of a politician’s election campaign. During the first 70 years of the 20th century, a larger number of individuals and groups got involved, but the ideas remained the same: try to outspend the competition.

Brakes were final put on the free flow of money in election campaigns, post-Watergate, with the creation of the Federal Elections Commission in 1975 to track campaign contributions and enforce contribution limits. Certainly, the role of money did not go away, but where before there was almost nothing in the way of limitations, those who wanted a competitive advantage born of money now had to work harder to make that happen.

The Supreme Court’s decision in Citizens United v. the Federal Elections Commission in 2010 took the brakes off.

The 5-4 decision, representing a reversal of earlier Supreme Court findings, holds that political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections. While groups may not give money directly to campaigns, they may seek to persuade the voting public through other means, including media advertisements.

Citizens UnitedCitizens United has unleashed unprecedented amounts of outside spending in the last three election cycles.

The ruling, in combination with a lower court case called SpeechNOW.org v. FEC, paved the way for the creation of super PACs, which accept unlimited contributions from corporations and individuals for the purpose of making “independent” expenditures.

During the 2012 presidential election cycle, in which non-party outside spending tripled the amount spent in 2008, super-PACs accounted for more than 60 percent of all indirect expenditure. Trevor Potter, attorney for John McCain during his 2008 presidential campaign, suggests that Citizens United has given corporate spending in elections the “Good Housekeeping Seal of Approval,” perhaps emboldening companies to take steps they would not have considered prior to 2010.

There have been some high-profile instances where the candidate who enjoyed the largest amount of contributions did not win an election.

Yet controlling for a whole host of alternative explanations, on average, campaign spending is still the single best predictor of election outcomes. In effect, we have created a scenario, not unlike an auction, where legislative seats go to the highest bidder.

Federal Election Commission logoThis effect is often even more obvious in state and local campaigns, where each dollar has more influence. Lax or nonexistent state and local campaign regulations allow a race to be dominated by a single spender.

That is the conclusion of a report issued by the Brennan Center for Justice, which finds that independent spending on state and local elections has skyrocketed since Citizens United and that coordination laws in many states are either too vague or weakly enforced to prevent the undue influence of money in state and local election campaigns.

The Supreme Court’s central rationale for allowing unlimited independent spending in support of a candidate is based on the unrealistic notion that the money and the candidate’s campaign are separate. Truth be told, former campaign advisers slide easily into jobs at super-PACs that support their old bosses, and candidates work closely with these groups fundraising for them and sharing everything from campaign videos to polling data. The theoretical difference between direct contributions and independent spending is often blurred beyond recognition.

The role of money in United States elections is not new. Moreover, it is not clear that what we are witnessing, today, is any different than what has been happening throughout much of United States history.

What is clear, however, is that the move, post-Watergate, to curtail the influence of money in election campaigns has been undone and we are again operating in an environment of unbridled campaign giving and spending.

Scot Schraufnagel is an associate professor and director of graduate studies in the NIU Department of Political Science.

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