Five years ago today, the Supreme Court issued its opinion in Citizens United, a 5 to 4 decision that has wreaked havoc on our democracy.
Chief Justice Roberts and his four colleagues ignored the country’s history, the Court’s own jurisprudence and the need to protect America’s representative system of government against corruption.
Instead, Citizens United has allowed millionaires, billionaires, corporations and other well-financed special interests to buy undue influence over our elections and corrupting influence over government decisions.
As a result of Citizens United, five years later:
- More than $1 billion in unlimited contributions has flowed into federal elections through super PACs – including more than $300 million through single-candidate super PACS used by federal candidates and their supporters to circumvent and eviscerate candidate contribution limits; and
- More than $500 million in secret, unlimited contributions has flowed into federal elections through tax-exempt 501(c) organizations.
The combined contributions of the 100 biggest donors to outside spending groups in the 2014 congressional races exceeded the total amount given to these races by all Americans who gave $200 or less, according to a POLITICO analysis. The average contribution from these top donors was $3.3 million per donor.
Citizens United fundamentally undermined the constitutional principle of one person, one vote.
As long as the current Supreme Court majority exists, the flow of huge contributions into our elections cannot be prevented by legislation. Nevertheless, there are a number of important legislative reforms that can be made within the boundaries of Citizens United.
Today at a joint press conference, campaign finance reform leaders in Congress announced a series of bills to address the multiple problems caused by Citizens United.
The bills would enact new disclosure requirements, establish a small donor, public matching funds system for presidential and congressional candidates and end individual-candidate super PACs by strengthening coordination rules. The bills also would enact a constitutional amendment to overturn Citizens United.
These reform efforts are being supported by a rapidly growing, broad-based national reform movement committed to challenging the rigged system in Washington and to providing ordinary Americans with fair representation in the nation’s Capitol.
Democracy 21’s efforts will continue to focus on supporting three of the bills being introduced today that were also introduced in the last Congress: the Empowering Citizens Act, the Stop Super PAC-Candidate Coordination Act and the DISCLOSE Act. The bills are summarized below.
Reform supporters recognize that given the current divisive Congress and its control by Republican opponents of legislative solutions to our campaign finance problems, reforms will take time. We also recognize, as John Gardner, the founder of the modern campaign finance reform movement, often pointed out, “Reform is not for the short winded.”
The fight for reform goes forward.
The Empowering Citizens Act, sponsored by Representatives David Price (D-NC) and Chris Van Hollen (D-MD), is the most comprehensive campaign finance reform legislation in Congress. The legislation would repair the presidential public financing system, create a public financing system for congressional races, shut down individual-candidate super PACs and strengthen the rules prohibiting coordination between candidates and outside spending groups.
The Times editorial supporting the Act said the legislation “would sever the informal relationships between ‘super PACs’ and the candidates they support, and use federal matching money to encourage small contributions to presidential and Congressional candidates.”
The Post editorial supporting the Act said the legislation contains “antidotes to big money in politics” including provisions that “would encourage small donations by creating a 5-for-1 federal matching fund system in both congressional and presidential campaigns.” The editorial also said the Act would “eliminate the candidate-specific super PACs, such as Mitt Romney’s Restore our Future and President Obama’s Priorities USA, that did the most to shred the fiction of independent expenditures.”
A later New York Times editorial (August 17, 2013) supporting the Act said, “The sleazy flow of cash cries out for a public financing system for Congressional elections that would give more power to small donors, along the lines of the Empowering Citizens Act, introduced by two Democrats, David Price of North Carolina and Chris Van Hollen of Maryland.”
A New York Times editorial on August 4, 2014, said that individual-candidate super PACs “could be shut down if Congress would pass the Empowering Citizens Act, a bill introduced in the House that would put strict limits on these kinds of coordinated contributions.”
The Empowering Citizens Act allows ordinary Americans to play a central role in financing presidential and congressional elections by matching small contributions from individuals up to $250 per donor with multiple public funds on a 6 to 1 basis. Federal candidates who participate in the matching funds system have to agree to limit the contributions they receive from individuals to $1,000 per donor, per election.
The matching funds system would greatly magnify the importance of ordinary Americans in financing federal elections and would provide federal candidates with an alternative way to run for office without being indebted to their funders.
The Empowering Citizens Act also includes provisions to shut down individual candidate super PACs and to strengthen the rules prohibiting coordination between outside spending groups and the candidates they support.
Individual candidate super PACs operate as arms of the candidate they support. They are vehicles for supporters to circumvent and eviscerate the candidate contribution limits by giving unlimited contributions to the super PAC supporting that candidate.
The Act defines coordination between a candidate and a super PAC to include elements that establish close ties between the candidate and the super PAC. Once such coordination is established, all future expenditures by the super PAC to support the candidate are treated as coordinated with the candidate. Under federal law coordinated expenditures are defined as also being in-kind contributions and are subject to the PAC contribution limit of $5,000 per year.
The Stop Super PAC-Candidate Coordination Act is also sponsored by Representatives Price and Van Hollen and contains just the super PAC/coordination provisions found in the Empowering Citizens Act. Both bills define a super PAC to be coordinated with a candidate when:
- the super PAC is directly or indirectly established by or at the request or suggestion of, or with the encouragement of, or with the approval of, the candidate or the agents of the candidate it supports;
- the candidate or the candidate’s agents solicit funds or engage in other fundraising activity for the super PAC, including by providing or sharing fundraising lists with the super PAC;
- the super PAC is established, directed or managed by former political, media or fundraising advisers or consultants to the candidate or entities controlled by the candidate;
- the super PAC has had communications with the family of the candidate about the candidate’s campaign; or
- the super PAC has retained the professional services of any person who during the same election cycle has provided or is providing professional services relating to the campaign to the candidate or the candidate’s campaign.
Once the super PAC meets any one of these criteria, all of its futures expenditures for public communications to support the candidate are deemed coordinated with the candidate. They are also treated under the law as in-kind contributions to the candidate and subject to the PAC contribution limit of $5,000 per year.
The bills also strengthen the general rules prohibiting coordination between a candidate and an outside spending group. These rules have been seriously undermined by flawed, ineffectual FEC regulations. The bills treat as coordinated expenditures any communications or payments for communications made by any person pursuant to any general or particular understanding, or based on discussions, with the candidate or the candidate’s agents about the communications or payments.
The DISCLOSE Act is sponsored in the House by Representative Van Hollen and in the Senate by Senator Sheldon Whitehouse (D-RI) and has been introduced in each of the past two Congresses.
In the Citizens United case, the Supreme Court, while striking down the ban on corporate expenditures in federal elections, upheld, by an 8 to 1 vote, disclosure requirements for groups making independent expenditures in federal elections. Justice Kennedy, writing for the majority, said, “A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today.”
But five years later, an “effective disclosure” system still does not exist. Since Citizens United, outside groups have spent more than $500 million in secret contributions to influence presidential and congressional elections.
The DISCLOSE Act would close the loopholes that have allowed dark money to flood into our elections. The Act requires groups that spend a total of $10,000 or more on campaign-related expenditures to file a disclosure report with the FEC within 24 hours and to file a new report each time they spend an additional $10,000 or more.
The reports must list the names of donors and amounts given of $10,000 or more to the organization. The spending group, however, has the alternative of setting up a separate bank account to make all of its campaign-related expenditures and only disclosing donors of $10,000 or more to that account. In these circumstances, the organization must make all of its campaign expenditures from the separate bank account.
The campaign-related expenditures covered by the disclosure provisions include public communications that contain express advocacy or the functional equivalent of express advocacy, and that contain “electioneering communications.”
“Electioneering communications” are defined to include any broadcast ad which refers to a federal candidate and is broadcast any time after January 1 of the election year for congressional candidates up to the November general election, and any time after the 120 days prior to the first presidential primary for presidential candidates up to the November general election.
The legislation includes provisions to prevent non-disclosing groups from evading the new disclosure requirements by transferring funds to other groups to spend on campaign-related activities.