Eight years ago, the Supreme Court issued its landmark decision in Citizens United v. FEC,[1] which drastically altered the landscape of American campaign finance. In Citizens United, the Court held in a 5-4 decision that political contributions were protected as free speech under the First Amendment, and that corporations could not be restricted from making contributions that were independent of a candidate or political party, such as advertising that promotes or criticizes a particular candidate.[2] The decision, which remains highly controversial today, sparked national attention to the issue of whether political contributions from corporations and other organizations (such as nonprofits and political action committees[3]) allow these groups to exert disproportionate influence on the outcome of national elections.[4] This blog post will briefly discuss: (i) the overall impact of Citizens United on federal campaign finance, and (ii) the emphasis on the Citizens United decision in the 2016 presidential election.
Campaign Contributions After Citizens United
As a result of Citizens United, “outside” spending,[5] meaning campaign contributions not directly affiliated with a candidate’s election committee or party, has played an increasingly pivotal role in the financing of federal campaigns. Although the holding of Citizens United pertained to a corporation’s ability to spend money directly on political advertising, the lasting impact of the decision was its dramatic expansion of the scope of outside spending in federal elections.[6] The decision allowed PACs, which can be funded by corporations or the heads of corporations, to “spend unlimited amounts from unrestricted sources so long as the spending is independent of the candidates or parties.”[7] Thus, as long as a corporation does not make a direct contribution to a particular candidate or party, there are virtually no restrictions on its ability to make political donations through the use of PACs. Since 2010, the total amount of outside spending in federal campaigns has increased exponentially and comprises a substantial portion of overall federal election spending.[8]
As a result of these increases, many politicians and individuals have taken issue with the decision, claiming that outside spending renders the individual voter powerless in a system founded on representative democracy.[9] A primary concern with this type of political fundraising is that it lacks transparency because many groups, like PACs, are not required to publicly disclose the source of their funding.[10]
Another controversial aspect of federal campaign finance after Citizens United is the concentration of donor activity.[11] One example is the 2016 presidential and congressional elections, which saw approximately 3.2 million contributions to federal candidates.[12] Of the 3.2 million contributions, approximately 50% of the total amount of funding came from only 16,000 donors.[13] Because of the dramatic expansion of federal election spending by corporations and other special-interest donors through PACs, the Citizens United decision was a central theme in the 2016 presidential election,[14] which is discussed in more detail below.
The 2016 Presidential Election
From the onset of the 2016 presidential election, Senator Bernie Sanders directed public attention towards the Citizens United decision: “That decision allows the wealthiest people in America, like the billionaire Koch brothers, to spend hundreds of millions of dollars buying elections and, in the process, undermine American democracy.”[15] The eventual presidential candidates Hillary Clinton and Donald Trump soon followed suit, adding a distinct populist element to their campaign rhetoric.[16] Although Clinton and Trump stated intentions to remove “big money” and undisclosed corporate influence from politics, each presidential candidate received sizable contributions from PACs.[17] Specifically, the Clinton campaign received 18% of its overall contributions, approximately $220 million, from such sources, whereas the Trump campaign received 12% of overall contributions, or approximately $80 million, from PACs.[18]
Despite public disapproval of the Citizens United decision and strong advocacy for campaign finance reform in the 2016 elections, it appears unlikely that outside spending will be curbed in the near future. In 2016 alone, PACs contributed $1.4 billion to federal campaigns, suggesting that widespread bipartisan support would be necessary to change the current system, and require Citizens United to be overturned.[19]
[1] Citizens United v. FEC, 558 U.S. 310 (2010).
[2] See Citizens United v. Federal Election Commission, Scotus Blog, http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/ (Last visited Feb.15, 2018); Citizens United v. FEC, 558 U.S. 310 (2010).
[3] A political action committee or “PAC” is an organization formed to collect and distribute funds in support of a political candidate. See Michael Levy, Political Action Committee, Britannica (Jan. 22, 2018), https://www.britannica.com/topic/political-action-committee.
[4] See Spaulding, infra, note 9.
[5] See Open Secrets, Outside Spending, https://www.opensecrets.org/outsidespending/ (Last visited Feb. 15, 2018).
[6] See Bob Biersack, 8 Years Later: How Citizens United Changed Campaign Finance, OpenSecrets.org (Feb. 7, 2018), https://www.opensecrets.org/news/2018/02/how-citizens-united-changed-campaign-finance/.
[7] Id.
[8] Id.
[9] See Stephen Spaulding, Congress Has Been Broken by Special Interests – Here’s How to Fix It, The Hill (Jan. 12, 2018), http://thehill.com/opinion/campaign/368723-congress-has-been-broken-by-the-special-interests-heres-how-we-fix-it.
[10] See Biersack, supra, note 6.
[11] See Michelle Ye Hee Lee, Fewer Than 16,000 Donors Accounted for Half the Federal Campaign Contributions in 2016, wash. Post (Jan. 19, 2018), https://www.washingtonpost.com/politics/less-than-16000-donors-accounted-for-half-the-federal-campaign-contributions-in-2016/2018/01/18/07.
[12] Id.
[13] Id.
[14] See Blu Frankel, All Talk, No Action? Clinton and Trump on Campaign Finance Reform, Harvard Political Review (Sept. 26, 2016), http://harvardpolitics.com/united-states/talk-no-action-clinton-trump-campaign-finance-reform/.
[15] See Michael McGough, Democrats United in (Over) Promising to Reverse Citizens United, L.A. Times (July 26, 2016), http://www.latimes.com/opinion/opinion-la/la-ol-citizens-sanders-20160726-snap-story.html.
[16] Id; See Frankel, supra, note 14.
[17] See Bill Allison, et al., Tracking the 2016 Presidential Money Race, Bloomberg (Dec. 9, 2016), https://www.bloomberg.com/politics/graphics/2016-presidential-campaign-fundraising/.
[18] Id.
[19] See Peter Overby, Campaign Finance System of Big Money Now Overshadows Watergate-Era Reforms, NPR (Feb. 7, 2018), https://www.npr.org/2018/02/07/582877375/campaign-finance-system-of-big-money-now-overshadows-watergate-era-reforms.
