Bones to Pick with Citizens United on Fourth Anniversary (The Hill)

It has now been four years and two election cycles since the Supreme Court delivered its bombshell decision in the Citizens United case, and the damage to our democracy and to the public’s faith in its elected officials has been staggering.  At a time when the Roberts court is poised to do even more damage in its forthcoming McCutcheon v. FEC decision – involving a challenge to the long-standing aggregate contribution limits – it’s worth reflecting on how we got here.  

The most common – and understandable – complaint about the Supreme Court’s infamous 2010 Citizens United decision is that it treated corporations the same as individuals for purposes of campaign spending. As distressing as that is, there are other serious flaws in the decision that, until reversed, will continue to haunt and undermine our electoral process in the coming years.

First off, the Citizens United decision dangerously undermines the fight against corruption in our democracy. As bad as the corporate “personhood” established in the decision, the language in Justice Anthony Kennedy’s opinion about what constitutes corruption is just as damaging.  In ruling that the First Amendment prohibits limits on independent political spending by corporations and unions, he stated that the “appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” Justice Kennedy also claimed that, “the fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.”  

However, reams of polling data show many Americans are indeed concerned about the effect of unlimited corporate and union spending on our political process. Furthermore, by asserting that “favoritism” and “influence” are not avoidable in representative politics, Justice Kennedy essentially justifies an electoral system heavily tilted to those few who can afford to buy favoritism and influence.

Secondly, the Citizens United decision revealed an astonishing ignorance about the current disclosure regime. In Citizens United, the Court upheld campaign disclosure requirements by an 8-to-1 margin.  The decision highlighted the voters’ “informational interest” in knowing who is trying to persuade them.  Yet, the decision also revealed the Court’s fundamental misunderstanding of not only the disclosure regime in place at the time, but also—and even more problematically—the foreseeable impact of its holding on disclosure.

In Citizens United, Kennedy claimed that with the advent of the Internet, “prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters…This transparency enables the electorate to make informed decisions and giver proper weight to different speakers and messages.”

Unfortunately, the avalanche of money pouring into our electoral system from anonymous donors since the decision has achieved the opposite: most corporations do not reveal their political spending to the shareholders and efforts to require greater transparency at the Securities and Exchange Commission have been stymied, while exploding spending by non-disclosing “dark money groups” has blocked the electorate from being able to give proper weight to different speakers and messages.

Finally, the Citizens United decision abandoned the notion that large amounts of money can have “corrosive and distorting effects” on the political process and went deeper into the “money equals speech” tautology. In Citizens United, the Court doubled down on its insistence that any effort to combat corruption, if it involves the raising and spending of campaign funds, is presumptively suspect under the First Amendment because “money equals speech.”  As long as this myopic view dominates First Amendment jurisprudence, the United States is destined to have a political system heavily weighted to those with the biggest bank accounts.

The protection against the government passing laws that abridge freedom of speech does not guarantee the right of a speaker to spend unlimited money to amplify their speech.  Indeed, contrary to Justice Kennedy’s formulation of increasing the amount of speech and the number of speakers, those with vast resources can use them to drown out and dissuade other speakers.  In writing for the 6-3 majority in Austin v. Michigan Chamber of Commerce, Justice Thurgood Marshall asserted that the Supreme Court should uphold the restriction on corporate speech because “corporate wealth can unfairly influence elections.”

Certainly, there is a minority in this country who believe that the American political system is healthier after Citizens United.  In their worldview, they see nothing distorted about a political system where far less than 1 percent of Americans contribute $200 or more to a federal candidate and where only  .000063 percent – about 200 individuals – gave more than 80 percent of the individual Super PAC money spent in presidential elections.  While they may have five of the nine Supreme Court justices on their side today, the decision’s supporters will never convince the vast majority of Americans that Citizens United fosters the kind of democratic system our Founding Fathers envisioned.

Meredith McGehee is policy director at the Campaign Legal Center. This opinion piece originally ran in The Hill on January 22, 2014.