It's hard to assess the damage of a hurricane before it hits. Before a storm, meteorologists can make models. Governors can ask citizens to evacuate. And families can stock up on batteries, pop-tarts, and bottled water. But the extent of the hurricane is unclear until it has passed.
Nearly five years ago, the Supreme Court eviscerated America's system of campaign finance in Citizens United. With the force of a cyclone, the Court jettisoned a century of law. But in the aftermath of the decision, it remained unclear how catastrophic it would be. Immediately following the ruling, legal scholars described the case as everything from "minor" to "cataclysmic."
The passage of time vindicates the "cataclysmic" camp. In the post-Citizens United era, the corrosive power of money has overwhelmed the voices of working Americans. Outside spending in the 2012 Presidential election soared to over $1 billion, up from $340 million in 2008. Similarly, outside spending in midterms spiked from $68 million in 2006 to $338 million in 2010. The 2014 midterm election was the most expensive in American history, with outside spending topping $555 million.
Conservatives on the Court vowed that Citizens United would strengthen American democracy. They were wrong. This piece explores the commitments, promises, and predictions made by Justice Kennedy and the conservative jurists in Citizens United. Five years later, their promises stand in stark contrast to the world we live in today.
Promise 1: Citizens United will fight corruption and make the government more accountable to the people.
Justice Kennedy centered the majority opinion on the idea that big money in politics had no relation to corruption or the perception of corruption. In his words:
We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption... The appearance of influence or access...will not cause the electorate to lose faith in our democracy... [T]he fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt. ... Ingratiation and access, in any event, are not corruption.
Hardly. In politics, perception is reality. And Americans believe that money corrupts. Consider:
•87 percent think that donors, not constituents, dictate the agenda of Congress.
•89 percent of Americans believe there is "too much corporate money in politics."
•85 percent think "corporate money drowns out the voices of ordinary people."
•84 percent believe "corporate spending has made Congress even more corrupt."
The 10-15 percent of Americans apparently unconcerned with the deluge of dark money do not represent the American "electorate." They do, however, have fearless advocates on the Supreme Court (and in Congress).
But decimation of campaign finance did more than foster the perception of corruption. It empowered corporations and rich Americans to stack the political process in their favor. As shown by Princeton Professor Martin Gilens, American democracy was already overly responsive to the interests of the affluent before 2010. Citizens United exacerbated this tendency.
In the 2012 election, political scientists estimated that two Americans, Charles and David Koch, had as much political influence as 1,030,000 union members. And billionaire-turned-environmental-activist Tom Steyer spent more than either of them in 2014.
So much for one person, one vote.
Promise 2: Citizens United will improve the quality and the diversity of ideas in our political discourse.
Justice Scalia is famous (or infamous) for arguing that "given the premises of democracy, there is no such thing as too much speech." But two or three people speaking far more loudly than anybody else is hardly too much speech.
Justice Kennedy incorporated Scalia's line of reasoning into his Citizens United opinion. Specifically, Kennedy suggested that giving a green light to corporate spending would enhance our democratic dialogue. He posited:
It is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes...The purpose and effect of [campaign finance] is to prevent corporations... from presenting both facts and opinions to the public.
Citizens United, of course, did not lead to "diverse sources" presenting "facts" to voters. Given the disproportionate concentration of wealth in the hands of a few Americans, most of the new spending has come from a small network of conservatives. As noted by Zephyr Teachout in her new book, "[T]he Koch brothers' political network spent more than $400 million during the 2012 campaign, more than double the total spent by the top ten labor unions combined."
And super PACs are not presenting "facts" to the public. Consider the Koch's group, American for Prosperity. According to a nonpartisan fact-checking group, 0 percent of the group's ads in 2014 are "true" or "mostly true." A whopping 86 percent were "mostly false," "false," or "pants on fire" false.
Promise 3: Citizens United will not shift political power from ordinary Americans to corporations.
Justice Roberts, in his concurring opinion, promised that Citizens United would protect the rights of the "individual on a soapbox and the lonely pamphleteer" by strengthening the vibrancy of American democracy. Justice Kennedy contended that campaign finance regulations harmed ordinary Americans by precluding "manifold corporations" from "advising voters on which [candidates] or entities are hostile to their interests."
Five years later, big money drowns out the voices of the America's lonely pamphleteers and soapbox speakers. Why volunteer at a phone bank or donate $10 to a campaign when you know Sheldon Adelson and Tom Steyer are writing checks for $100 million and $74 million, respectively?
And Kennedy is wrong to suggest that corporations advise voters on what is "hostile to their interests." The agendas of corporations themselves are often hostile to voters' interests. Ultimately, corporations and the rich care about different things than working Americans. Middle and lower class Americans want higher minimum wages and job security. Affluent Americans want lower marginal tax rates and a smaller budget deficit.
Promise 4: Citizens United will thwart foreign corporations from influencing American elections.
Justice Kennedy promised that Citizens United would "[prevent] foreign individuals or associations from influencing our Nation's political process." He declared that Citizens United did not "cast doubt on laws that place special restrictions on campaign spending by foreign nationals."
Kennedy's claim was immediately disputed. Justice Stevens warned in his Citizens United dissent that the Supreme Court "would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans." President Obama raised similar concerns about the power of foreign money in his 2010 State of the Union Address. The president asserted:
[Citizens United] will open the floodgates for special interests --including foreign corporations -- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities.
Sitting in the audience, Justice Alito furiously shook his head and mouthed "not true" at the president. Chief Justice Roberts would later condemn Obama's remark as "very troubling."
But five years later, the evidence bears out Justice Stevens' and President Obama's prediction. To quote Senator McCain, "foreign money is coming into American political campaigns." In 2012, for example, Mitt Romney's super PAC received a $1 million contribution from a foreign company. And this past year, "a Mexican businessman funneled more than $500,000 into U.S. political races through Super PACs."
Because Citizens United allows anonymous, dark money to flow into our electoral system, it's hard to put a precise number on how much non-Americans are spending in American elections. But it is unequivocally clear that some of the super PACs receive foreign funds. And that in itself is a tremendous loss for American democracy.
Conclusion: Stevens' prescient dissent
Citizens United got a lot of things wrong. But one part of it -- Justice Stevens' dissent -- is worth re-reading. In his dissent, Stevens affirms:
Financial resources, legal structure and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races. The Court's ruling threatens to undermine the integrity of elected institutions across the nation.
Citizens United is corroding our democracy. The decision and its progeny (McCutcheon, Davis, and Bullock) are based on flawed predictions and faulty premises. Politics should not be the playground of the super rich.