Floyd Abrams, who represented Senator Mitch McConnell in the Supreme Court in the Citizens United case, wrote an op-ed in The Wall Street Journal earlier this week entitled, “The Citizens United Disaster That Wasn’t.”
Mr. Abrams obviously has a very different view than I do of what a disaster is.
The 5 to 4 Citizens United decision by the Supreme Court in 2010 declared unconstitutional the longstanding ban on corporate expenditures to influence federal elections. In so doing, the decision opened the floodgates to secret money and unlimited contributions pouring into presidential and congressional elections.
In the past three elections since the Citizens United decision, nonprofit groups – almost all of which are corporations – have spent more than $700 million in unlimited, secret contributions on independent expenditures to influence federal elections.
Prior to the Citizens United decision, these nonprofit groups never would have been able to spend these secret contributions in federal elections because as corporations, the nonprofit groups were prohibited from making expenditures in federal races.
Mr. Abrams argues that for-profit corporations have not spent large sums to influence federal elections. However, he has no way of knowing how much they spent, because we have no idea how much money these for-profit corporations may have given to nonprofit groups to spend in elections. Nonprofit groups are not required to and do not disclose their donors.
Unlimited secret contributions, furthermore, are the most dangerous funds in American politics. These contributions allow donors to buy and officeholders to sell government influence, and provide no way to hold them accountable. Secret contributions are not secret to the donors or the beneficiaries; they are secret only to the American people.
And if that is not enough of a disaster caused by Citizens United, the decision also provided the legal justification that was used by the D.C. Circuit Court of Appeals in the SpeechNow case to unleash Super PACs on our political system.
Prior to the SpeechNow decision, federal law limited individual contributions to PACs that made independent expenditures in federal campaigns to $5,000 per donor, per year. In striking down these limits, the D.C. Circuit decision stated that the Citizens United decision “resolves this appeal.” The Court held:
In accordance with that decision, we hold that the contribution limits of 2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3) are unconstitutional as applied to individuals’ contributions to SpeechNow.
Thus, the jurisprudence of the Citizens United decision paved the way for the explosion of Super PACs in federal elections. And while most of the contributions spent by Super PACs have come from individuals, this is irrelevant to the enormous damage to our political system caused by Super PACs.
During the last three elections since Citizens United, Super PACs have spent more than $2 billion in unlimited contributions to influence federal elections. In the 2016 election just 100 donors contributed $1 billion to Super PACs, an average of $10 million per donor.
Thus, Super PACs and the big donors who fund them have exercised greatly magnified influence over our elections and have created widespread opportunities for the wealthiest people in the country to buy influence over government decisions.
During the three past elections, furthermore, so-called single-candidate Super PACs spent more than $850 million to support only the single-federal candidate backed by the PAC.
Generally controlled by family members or close political associates, these Super PACs are nothing more than vehicles for massive evasion of the $2,700 candidate contribution limit. They provide a means for big donors to give, and for the candidate they support to receive, the direct benefit of huge, unlimited contributions, bypassing the candidate contribution limit.
The American people apparently do not share Mr. Abrams’ views about our campaign finance system. A New York Times/CBS News poll during the last election found an overwhelming 85 percent of respondents supported either fundamental changes or a complete overhaul of the way our campaigns are financed.
Judge Richard Posner, who recently retired from the bench, also does not share Mr. Abrams’ view. A conservative federal judge seen by many as the most influential judge outside of the Supreme Court, Judge Posner said about Citizens United:
Our political system is pervasively corrupt due to our Supreme Court taking away campaign-contribution restrictions on the basis of the First Amendment.
Citizens United has provided billionaires and multimillionaires with unprecedented opportunities to buy government influence and results at the expense of the American people who believe, with good cause, that Washington is rigged against their interests.
The Citizens United decision has been an unmitigated disaster for the country.