The Supreme Court’s decision in Citizens United unleashed an era of
unprecedented pay-to-play politics. Thankfully, steps can be taken to
curb the outsize influence of big donors and super PACs and restore
voters’ trust in their political institutions.
By Lawrence Norden
NEW YORK — Four years ago, the Supreme Court ushered U.S. democracy
into a new age of big money and pay-to-play politics. In Citizens
United v. Federal Election Commission, the court ruled in favor of
unlimited independent political spending by corporations and other
outside groups, which ultimately led to the creation of “super
political-action committees,” or super PACs. The consequences were
immediate and clear: Outside campaign spending exploded, making
politicians more beholden than ever to their biggest donors, and
creating an appearance of political corruption that threatens to
further undermine voters’ trust in U.S. democracy.
Although overturning the Citizens United decision would be the most
direct path to undoing big donors’ newest power to secure special
treatment, that is unlikely without a shift in the court’s membership.
For the foreseeable future, reasonable people will continue to debate
the constitutional question of what kind of spending is protected by
the First Amendment and who — or what — can exercise that right. The
good news is that, even absent a new Supreme Court decision, other
steps can be taken to restore protections against undue donor
influence and voters’ trust in their political institutions.
The problem isn’t just that Citizens United has caused political
spending to rise, although the $1 billion spent by outside groups in
the 2012 election is more than the total outside spending reported in
the preceding 30 years combined. It’s also that the type of
“independent” super PAC spending the decision encouraged is often
closely tied to candidates themselves.
In 2012, super PACs run by former staffers and close advisers
supported Mitt Romney, Barack Obama, and many other presidential
candidates. The model will be ubiquitous in 2014. One legislator’s
former chief of staff now running a super PAC boasted: “I know the
donors. I know his operation.”
We need stronger barriers against coordination between candidates and
“independent” groups. Close political advisers, longtime associates,
or others with clear access to elected officials should be barred from
running super PACs that collect money to spend on those officials’
campaigns. This is an action Congress or the Federal Election
Commission can take.
Voters also deserve to know who is trying to influence them. The
Internal Revenue Service and the Securities and Exchange Commission
(SEC) must help ensure there is clear disclosure of who is donating to
independent groups. This will help give voters the information they
need to understand exactly what a group is hoping to get out of a
In particular, the IRS needs to issue clear rules on what constitutes
“campaign-related political activity” and ensure that organizations
cannot use their tax-exempt nonprofit status to hide political donors.
To its credit, the IRS has started this process by proposing new
rules, but many details must still be worked out. The SEC must also
consider a rule requiring public companies to disclose information
about their political spending. Shareholders, and the public, have a
right to know if corporations are pushing a political agenda.
But only comprehensive reforms to the structure of the campaign
finance system can truly restore fairness, transparency, and
accountability to US elections. The best way forward is legislation
establishing a national public financing system that matches small
donations. This will elevate the voices of average voters and allow
politicians to avoid dependence on the biggest donors.
Pushing federal-level legislation through will be tough. But citizens
can take action at the state and municipal level. In New York City,
public campaign financing adopted more than 15 years ago has
drastically changed the way candidates raise money: Instead of
focusing almost exclusively on big donors, candidates spend more time
raising small donations from people in their communities.
Candidates frequently claim to be unhappy about outsized, outside
spending but say nothing can be done in light of Citizens United. Yet
Democratic Sen. Elizabeth Warren and Republican Scott Brown defanged
super PACs in their 2012 Massachusetts Senate contest when they signed
the “People’s Pledge,” whereby each agreed that if either campaign
benefited from a third-party ad, it would pay a penalty to a charity
chosen by the other side. The result was a cessation of outside
To be sure, the People’s Pledge was a good idea, but it hasn’t been
replicated in a major contest. And relying on candidates to police
themselves is not enough. Such agreements will not curb the growing
influence of the biggest outside spenders. Broader systemic changes
are still required.
In just four years, Citizens United has shifted U.S. democracy
drastically in favor of wealthy political contributors. Clearer
coordination rules, stronger disclosure, and, ultimately, public
campaign financing constitute common-sense solutions to help put
average voters back in charge.
Lawrence Norden is deputy director of the Democracy Program at the
Brennan Center for Justice at New York University School of Law.