The ongoing wrath of the Citizens United decision — 13 years later

Thirteen years ago, the U.S. Supreme Court struck a devastating blow to democracy in its Citizens United v. FEC decision. The ruling reversed previous judicial precedents and struck down a century’s worth of campaign finance laws. The court erroneously decided that “independent expenditures” in campaigns are truly independent of candidates and party committees and therefore not a source of corruption in politics.

Suddenly, gone were limits on the amount of funds wealthy individuals and groups could donate to outside electioneering groups. Gone was the ban on corporate money in federal and state elections. Gone were the efforts to prevent the super-rich from playing a disproportionate role in funding campaigns.

The effect on our elections was immediate. Campaign spending by outside electioneering groups in the 2010 election cycle increased from $69 million in the previous midterm election to $309 million. Campaign spending by outside electioneering groups has continued to double every election cycle since, reaching nearly $2 billion in 2022. Fueled by billionaires and other megadonors, including hidden foreign interests, Open Secrets documents that a record-shattering $16.7 billion was spent in the 2022 state and federal elections.

Worse yet, it turns out that much of this outside electioneering spending is not “independent” of candidates and party committees at all. Through surrogates, candidates and parties are now playing a very active role in setting up and directing outside electioneering groups. Roughly half of the wealthiest “super PACs” spend all of their money supporting a single candidate or party, setting the stage for wealthy donors to endear themselves with lawmakers.

A recent example of the apparent control many lawmakers have over “their” super PACs is Rep. Kevin McCarthy’s (R-Calif.) negotiations to become Speaker of the House. The Congressional Leadership Fund (CLF) offers itself as an independent super PAC that works to help elect Republicans to the House. CLF has often spent money in Republican primaries warding off conservative challenges to moderate and incumbent Republicans. As part of a deal to win the support of right-wing Republicans for McCarthy’s Speakership bid, they demanded that McCarthy’s super PAC not spend money in Republican primary contests. CLF promptly complied.

A lot of this money is coming from unknown sources. Writing for the court, Justice Anthony Kennedy reasoned that Citizens United will increase campaign spending but assured everyone not to worry because of the excellent disclosure system in place, helping voters to avoid being duped by wealthy special interests. Sadly, Kennedy got it wrong. There is no excellent disclosure system in place. Citizens United not only radically increased spending, it also created “dark money” — campaign money from a new wave of secret financers. Years later, Kennedy conceded that the system “was not working the way it should.”

Yet, the Citizens United decision remains the law of the land.

American voters are not without options for reining in some of the abuses and corruption caused by Citizens United. We can urge the president to issue an executive order mandating full disclosure of campaign spending by large government contractors that get our taxpayer dollars. We can push Congress and the states to pass legislation, like the DISCLOSE Act, that would establish an excellent disclosure system ridding our elections of dark money and even camouflaged foreign influence. We can ask Congress to submit to the states a constitutional amendment to overturn Citizens United, which already has considerable support. And we should seriously consider expanding the size of the court for the appointment of new and more balanced justices.

Without any or all of these corrective actions, it leaves unaddressed the corruption and means for buying political favors expressed by wealthy interests such as Sam Bankman-Fried, the once-cryptocurrency king charged with bribery, who admitted exploiting the Citizens United decision for personal gain. Bankman-Fried acknowledged that his millions of dollars in dark money contributions to lawmakers were made possible by the Citizens United decision, fueling his massive effort to buy friends in government and public policies friendly to his cryptocurrency business, and leading to his arrest in the Bahamas for fraud and money laundering.

How the courts will judge Sam Bankman-Fried remains to be seen. But what’s clear is that Citizens United smoothed the way for unprecedented levels of corruption from wealthy individuals and corporations alike, gutting the only legal standard for imposing contribution limits and prohibiting corporations from spending their vast treasury funds to influence elections.

Craig Holman, Ph.D. is a government affairs lobbyist at Public Citizen. Lisa Gilbert is executive vice president at Public Citizen.