When the Supreme Court ruled that corporations had the right to political free speech, it set loose a tidal wave of campaign money that helped elect a new Congress in 2010 and is now reshaping the presidential race.
But the impact of the Citizens United decision has been as surprising and controversial as the ruling itself. Although the high court’s 5-4 decision is best known for saying that corporations may spend freely on campaign ads, the gusher of money pouring into this year’s campaigns has mostly not involved corporate funds. And some of the practices that critics of the decision decry actually stem from a separate case decided by a U.S. Court of Appeals after the Citizens United ruling.
The rise of “super PACs,” which may raise and spend unlimited amounts so long as they do so independently of a candidate, has allowed close aides to candidates to set up supposedly independent committees that have raised huge amounts, primarily from wealthy individuals. The PACs have spent most of their money on negative ads attacking the opposition. That unlimited fundraising was set in motion by Citizens United, but came to full flower after the subsequent Court of Appeals decision.
By design or happenstance, a two-track campaign funding system has been created: One features small donors and strict regulation; the other exists for the very wealthy, who are largely freed from regulation.
Exasperated defenders of the campaign funding laws see the Citizens United decision as a historic blunder that has all but destroyed not just the 1940s limits on campaign spending by corporations and unions, but the post-Watergate reforms as well. This week, which marks the 40th anniversary of the Watergate break-in, they are asking the justices to reconsider the Citizens United ruling by taking up a case from Montana that raises some of the same issues.
Fred Wertheimer, a champion of the campaign funding laws, says the Citizens United decision has “fundamentally undermined our democracy and is taking the nation back to the system of ‘legalized bribery’ that existed in the robber baron and Watergate eras.”
The Supreme Court meets behind closed doors Thursday to discuss the Montana case. But the five justices who supported Citizens United, led by Justice Anthony M. Kennedy, are not likely to agree with the critics. They believe the 1st Amendment fully protects independent spending on campaigns and that more public speech and debate on politics is a plus, not a minus.
But they may be concerned over how political spending has shifted away from candidates and political parties and toward new outside groups.
Before 2010, political action committees were common. They allowed like-minded people — including a company’s employees — to contribute as much as $5,000 each to spend on candidates or campaigns. But in March of 2010, two months after the Citizens United ruling, the contribution lid was lifted.
The U.S. Court of Appeals in Washington, citing the 5-4 opinion, reasoned that since the 1st Amendment guaranteed the right to unrestricted “independent” spending on politics, PACs should have the right to collect unlimited sums, so long as they too were independent.
Thus, the parallel system was born.
Congress had set limits on individual contributions after the Watergate scandal, and they remain in effect today. A person who wants to contribute to the campaigns of President Obama or Mitt Romney, his Republican challenger, may give no more than $5,000 this election cycle. But those who have a million dollars to spend can send their money to a super PAC supporting Obama or Romney. Restore Our Future, a super PAC supporting Romney, has at least 16 donors who have given more than $1 million.
“The real impact of Citizens United,” said Columbia University law professor Richard Briffault, has been to legalize “the unlimited use of private wealth in elections…. You haven’t seen nearly as much business or corporate money as people expected. Most corporations are not eager to be involved in an obvious ways.”