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Citizens United, Super PACs, and the Modern Megadonor

In 2010, a legal decision that was decided by the slimmest of margins has turned out to have one of the greatest impacts on our modern political system. I am speaking, of course, of Citizens United v. Federal Election Commission and the profound influence it has had on changing the way our political campaigns function. In a few short years, the total cost of campaigns during a presidential election year has more than doubled, from $7,145,447,701 in 2008 to $16,413,031,959 in 2020 (adjusted for inflation); that it has is entirely due to this landmark ruling.

The top political donors of the 2018 midterm election are a bipartisan and varied lot. Top, from left: Sheldon Adelson, Tom Steyer and Michael Bloomberg. Middle: S. Donald Sussman, George Soros and Stephen Schwarzman. Bottom: Jeff Bezos, Fred Eychaner and Kenneth Griffin. (Getty Images/AP/LA Times)

It's not just the amount, though, that is concerning. In 2018, the 10 most generous donors and their spouses gave a whopping 7% of all total campaign donations. In addition, a 2021 study by the non-profit Issue One found that between January 2009 and December 2020, the top 100 ZIP codes for political giving (less than 1% of the total population) accounted for roughly 20% of the $45 billion that federal candidates and political groups raised. As the famous movie line goes, "I'm fairly alarmed here."

Citizens United has obviously made its mark. Before SCOTUS' 5-4 decision, a congressional bill was passed in 2002 that reigned in unlimited spending on political campaigns. The Bipartisan Campaign Reform Act of 2002, also known as the BCRA or the McCain-Feingold Act, addressed both the role of soft money (contributions not subject to federal limits) and advocacy ads that were played within 30 days of a primary or 60 days of a general election. The goal was to reign in undue influence by big money on the American electoral process.

Citizens United struck down certain aspects of the BCRA, specifically its limitations on what corporations, nonprofits, or unions could spend and how they could participate as sponsors of broadcast ads during the final days of an election. The court's majority opinion declared that a group of individuals had the same freedom of speech rights as an individual; therefore, the group was to be treated as if it were an individual and not subjected to additional restrictions based on its size and/or funding capacity. Such an entity, stated the majority, "did not present a substantive threat of corruption, provided it was not coordinated with a candidate’s campaign."

Enter a new type of group, the Super PAC, whose participation in elections can be directly attributed to Citizens United. Unlike conventional PACs (political action committees), Super PACs are allowed to raise unlimited amounts of money from groups and individuals alike. They are barred from coordinating directly with a candidate or donating directly to a campaign but can advocate or rail against any candidate or issue they choose.

According to the nonprofit Open Secrets, these groups raised $2,737,855,088 during the 2022 election cycle alone. Although Super PACs are required to report contributor names and amounts, the fact that any entity can give unlimited funds allows for the flow of dark money into their coffers from shell corporations, thus obscuring the true donors' identities.

Surprisingly, corporations have not jumped into the Super PAC game, as was feared they would. Instead, it is the wealthiest individuals among us who have taken advantage of this new way of influencing the political landscape. During the 2018 election cycle, the top 1% of super PAC donors contributed 96% of funding. Together, those 1,562 donors gave $818 million. The rest of the super PAC donors gave just $34 million. Additionally, 661 out of the 756 US billionaires gave a total of $1.2 billion during the 2020 election cycle, up from $31 million in 2010.

It would be beyond naïve to think that big money comes without its own price tag. People make campaign contributions because they expect a beneficial outcome if their candidate wins. Donors who contribute large amounts are typically given access to candidates, where they then have the ability to let the aspiring legislator know what their interests are and how they can help the donor. This access can, in turn, influence how politicians vote on issues that affect, among other things, business law and regulations.

Since part of the government's role is to protect the general public from abuse or harm, it is easy to see how this situation creates a conflict of interest for lawmakers who are charged with the responsibilities of carrying out that role. The desire to re-access large amounts of money for another election bid could potentially sway an elected official to rule in favor of big money, and not necessarily in the interest of the average citizen.

As John McCain, co-sponsor of the BRCA, wrote in his book, Worth the Fighting For, "Money does buy access in Washington, and access increases influence that often results in benefiting the few at the expense of the many." Barak Obama also expressed concern about this situation. " I don't think American elections should be bankrolled by America's most powerful interests.... They should be decided by the American people."

If we are to have a just and equitable capitalism, then the laws that govern our country's economics must reflect the interest of all and not just a few. The only way forward is to limit the monetary contributions, and thus the influence, of those few. The Brennan Center for Justice offers several paths toward rectifying this situation, including full disclosure of all political spending, passage of the DISCLOSE Act, and the overhaul of the dysfunctional Federal Election Commission. Better capitalism can only be achieved through transparency and integrity, and reversing the Court's logical and practical failings in Citizens United is an excellent step to that end.

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