Voters have a right to know which wealthy special interests are spending big money to influence our vote and our government to rig the political system in their favor, but as the 2022 midterm elections approach, a case decided by the U.S. Supreme Court 12 years ago continues to threaten that fundamental right.
On Jan. 21, 2010, in the case Citizens United v. Federal Election Commission (FEC), the Court ruled to strike down a prohibition on corporate independent expenditures, which has since enabled corporations and other outside groups to engage in unlimited amounts of campaign spending.
In Citizens United, the Court upheld certain disclosure provisions from the Bipartisan Campaign Reform Act (BCRA), reasoning that prompt disclosure would be enough to prevent wealthy special interests from dominating the political process because voters could see who was paying for the ads and “give proper weight to different speakers and messages.”
The Court assumed that unlimited corporate campaign spending would pose no threat of corruption or the appearance of corruption because it would be “independent.”
However, it has become clear in the years since that voters are not getting enough information about the true sources of campaign spending and this supposedly independent spending in support of candidates or their campaigns is often intentionally coordinated.
Thus, we are left with a campaign finance system where wealthy special interests can use unlimited secret spending to drown out the voices of everyday Americans.
One way this has occurred is through creation of super PACs, which can accept unlimited contributions from nearly any non-foreign source and spend unlimited amounts to influence the outcome of federal elections.
Super PACs are theoretically required to be transparent about where their money comes from by reporting their fundraising and spending to the FEC. But that transparency is undermined when super PACs report contributions from secretly funded “dark money” groups, which themselves keep their donors hidden from the public.
Simply knowing that a super PAC is mostly or entirely funded by a vaguely named group that doesn’t disclose its funding denies voters crucial information.
This is a bipartisan problem. Major super PACs aligned with the leadership of both parties have received tens of millions of dollars, and in some cases most or all of their funding, from groups that keep their donors hidden from the public.
It has also become a growing problem as each respective election cycle has seen record-breaking amounts of spending. Campaign spending by corporations and other outside groups increased by nearly 900% between 2008 and 2016. In 2020, total election spending was $14.4 billion, up from $5.7 billion in 2018, and more than $1 billion in dark money was spent.
Additionally, even though it’s illegal for outside groups to coordinate election spending with candidates or political parties, many do because by and large, the FEC has failed to crack down on candidates and super PACs that work hand-in-glove.
The prevalence of this practice shows how the Court’s assumption in Citizens United that unlimited campaign spending would be conducted independently was erroneous.
For instance, supporters of Carly Fiorina established the super PAC “Carly for America” in the run-up to the 2016 presidential primary. “Carly for America” had almost the same name as her official campaign committee “Carly For President.”
By signing up attendees of events for the super PAC’s email list, handing out campaign stickers and helping with the setup prior to events, “Carly for America” maintained an active presence at most of Fiorina’s campaign events and served functions traditionally filled by campaign staff.
While this instance was brazen, “Carly for America” is far from alone. Super PACs are routinely established by close former aides of candidates, often contracting with the same consultants as the campaigns they support and candidates regularly appear at fundraising events for their supportive super PACs.
Campaign Legal Center (CLC) has filed complaints against several Democratic and Republican-affiliated candidates and groups for violating illegal coordination laws in the years following the Citizens United ruling.
As the 2022 midterms approach, the Citizens United decision will likely once again enable record-breaking amounts of campaign spending, including large sums of dark money spending, which will be coordinated by candidates and their super PACs.
The main way we could mitigate the negative effects of this decision is by having Congress approve legislation to create stronger disclosure and trace-back requirements and address dysfunction at the FEC to make the agency more able to crack down on illegal coordination, protecting voters’ right to know who is spending big money to influence their vote.
To allow voters to make their voices heard in our democracy, we need real transparency about who is spending big money on elections so that politicians can no longer receive unlimited secret money from wealthy special interests to support their campaigns.