January 21 will mark the sixth anniversary of the Supreme Court decision in Citizens United v. Federal Election Commission, one of the worst and most damaging decisions in the court's history.
In the case, the Supreme Court, by a 5 to 4 vote, ruled that it was unconstitutional to ban corporations from making independent expenditures in federal elections. In striking down the corporate spending ban, the court threw away more than 100 years of national policy, reversed decades of court precedent, and ignored the history of why corporate money had been prohibited in federal elections.
Citizens United held that campaign expenditures by corporations made independently from the candidate being supported cannot corrupt that candidate and therefore cannot be restricted. The ruling reflected the court's utter failure to understand how money works in American politics and the consequences of its decision.
In writing for the court, Justice Kennedy stated that restrictions on corporate campaign expenditures "have a chilling effect extending well beyond the government's interest in preventing quid pro quo corruption." Kennedy concluded, "The anticorruption interest is not sufficient to displace the speech here in question."
To put this in simple terms, Kennedy stated that our nation's ability to protect itself from the corruption of our government is overridden by the "right" of a corporation to make expenditures in elections.
This is a stunning and radical finding that has no constitutional foundation.
The Founding Fathers surely did not leave the government they were creating helpless to protect itself from corruption in order to provide a paramount right for corporations to make expenditures in elections.
In another radical departure, the Supreme Court in Citizens United greatly narrowed the definition of corruption to "quid pro quo" corruption, or bribery.
The Court disingenuously attempted to create the impression that this definition of corruption was consistent with the definition of corruption the Supreme Court had earlier developed in Buckley V. Valeo (1976), but that impression is false.
Buckley and a long line of Supreme Court decisions that followed held that "corruption" went beyond bribery for purposes of regulating campaign money. As the Court said in Buckley, "the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action."
Citizens United abandoned the Buckley definition of corruption without explanation or legal justification. This abandonment was carried forward in McCutcheon v. Federal Election Commission (2014) where Chief Justice Roberts wrote:
Any regulation must instead target what we have called "quid pro quo" corruption or its appearance. ... That Latin phrase captures the notion of a direct exchange of an official act for money.
Thus, Roberts defined the prevention of bribery as the only justification for campaign finance regulation, a position completely at odds with Buckley and forty years of previous court precedent to prevent legalized corruption.
The impact of the Citizens United decision, furthermore, was greatly expanded shortly after it was issued in 2010 when, expressly relying on that decision, the D.C. Circuit Court of Appeals held that the $5,000 federal limit on contributions to PACs making independent expenditures was unconstitutional.
Thus, Super PACs were born.
They were followed by "individual-candidate" Super PACs which raise and spend unlimited contributions, support only one candidate and are controlled by the associates of that candidate. These PACs have one overriding purpose: they serve as vehicles for a candidate and the candidate's supporters to circumvent and eviscerate the $2,700 limit on contributions to federal candidates enacted to prevent corruption.
The creation of Super PACs opened the door to the current onslaught of huge contributions from billionaires and multimillionaires that began in the 2012 national election.
Citizens United has returned to American politics the same kinds of "unlimited contributions" that caused the Watergate corruption scandals, the worst campaign finance scandals of the 20th century. In Buckley, the Supreme Court found that corruption was "inherent" in a system of unlimited contributions.
And that is precisely what Citizens United has given the nation - a system that is inherently corrupt.
Citizens United also returned unlimited, secret money to federal elections. This is the most corrupting kind of campaign money since it prevents any accountability for buyers and sellers of government actions. Secret money in our elections was ended in the wake of the Watergate scandals. In bringing this money back to our elections, the Supreme Court again showed no understanding of the consequences of its decision.
Justice Kennedy, in fact, wrote for the majority in Citizens United that "[a] campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today."
Yet, "effective disclosure" did not exist on that day nor does it exist today, six years later.
Since the Citizens United decision, $500 million in secret contributions has been injected into federal elections through nonprofit corporations that were freed by that decision to make unlimited campaign expenditures.
Justice Kennedy also wrote in Citizens United that the appearance of influence or access obtained through campaign money "will not cause the electorate to lose faith in this democracy." Kennedy did not cite a single piece of evidence to support this assertion.
The American people, however, do not share Justice Kennedy's "faith" in the system.
A New York Times/CBS News poll (June 2015) found that that 85 percent of the public believe that fundamental changes or a complete overhaul is needed in the campaign finance system. A Bloomberg News poll (September 2015) found that by 78 to 17 percent, the public believes Citizens United should be overturned.
Citizens United has left our political system in shambles. It is now up to the American people to demand the campaign finance reforms essential to changing that result.