THE BLOG
01/20/2015 02:07 pm ET Updated Mar 22, 2015

Citizens United at Five: Money Undermines Meaningful Participation

Meaningful participation in our democracy should be open to everyone. It should not be limited to a small subset of the country able to purchase influence in our elections and policymaking.

The cost of elections continues to rise: According to the Center for Responsive Politics, the 2014 midterm election cost $3.7 billion dollars. This is higher than the 2010 midterm election, but is expected to be surpassed by spending in the 2016 presidential election cycle. Again, during the 2014 election cycle mega-donors dominated the spending, with the top 100 campaign donorspouring in nearly enough cash to match some 4.75 million small donors combined. Moreover, the Center for Responsive Politics found that "just 666,773 individuals had donated more than $200 to campaigns, parties and political action committees in the 2014 election cycle." This means that about 0.2 percent of our population financed the midterm elections. 0.2 percent.

In his dissent in Citizens United v. FEC, decided five years ago, Supreme Court Justice John Paul Stevens warned that "corporations and unions will be free to spend as much... money as they wish on ads that support or attack specific candidates." The 2014 elections proved him right. For example, not only did spending by outside groups rise, but the expenditures by groups that do not disclose their donors, known as dark-money groups, was "up most sharply." In 2010, the first election cycle impacted by the Citizens United decision, independent groups spent $294 million on political ads, 46 percent of which came from dark money groups.

These trends are part of a new post-Citizens United landscape. As Kenneth Vogel hasexplained, "Taken together, the trend lines reflect a new political reality in which a handful of superaffluent partisans can exert more sway over the campaign landscape than millions of donors of more average means." The consequence of this trend is clear: more and more Americans are excluded from meaningfully participating in our democracy.

As Justice Stevens predicted, this changed landscape has also detrimentally impacted state courts across America. Thirty-nine states elect their supreme court justices, and while judicial elections used to be less partisan and rarely accounted for significant spending, Citizens Unitedopened the door to unlimited campaign spending by independent groups that have come to dominate judicial elections. In 2014, independent spending exceeded campaign spending for the first time in U.S. history.

In total, of the $15 million spent on judicial elections nationally, more than $8.5 million came from independent groups that were not affiliated with campaigns. Conservative groups have aggressively poured money into judicial campaigns. For example, the Republican State Leadership Committee, or RSLC, a group in Washington, D.C. that seeks to help elect Republican legislators and judges, spent over $1 million -- vastly more than anyone else -- in the North Carolina Supreme Court elections. The RSLC spent big on other nonpartisan courts that had never before seen multimillion-dollar judicial races, including in statewide elections in Montana and Tennessee, as well as a local election in Cole County, Missouri.

The consequence of excessive spending and more partisan judicial elections is casting doubt on the impartiality of the judiciary and raises serious concerns regarding the motivations of our elected judges. States have not insulated judges from deciding cases brought by campaign contributors, and a recent analysis by the Center for American Progress, or CAP, of states' recusal rules found that most states failed to strengthen their ethics rules to address the growth in campaign cash since Citizens United.

Perhaps even more troubling is that this post-Citizens United landscape has altered judicial decision-making: Studies by CAP and others have shown that all this spending is impacting judges' rulings in criminal cases. Specifically, ads funded by independent groups are much more likely to be soft-on-crime attack ads than ads paid for by the candidates, creating pressure on judges to rule against criminal defendants. And judges are doing just that.

In the five years since the Supreme Court decided Citizens United, the decision's impact is clear. Average American's voices are being drowned out by the outpouring of money from mega-donors and undercut by undisclosed spending by dark money groups. The hopes of turning to an impartial and unbiased jurist have faded as moneyed interests flood judicial elections with historic amounts of campaign contributions. The post-Citizens United landscape is void of meaningful participation in our democracy. Change is needed.