Human Rights

The True Cost of Citizens United: The Roberts Court’s Darkest Hour Revisited

Five years ago, conservatives on the high bench changed American elections forever. Here's what happened next.

It’s been five years since the Supreme Court decided Citizens United, which allowed unlimited corporate money into the political system and increased the domination of democracy by the wealthy elite. Money has indeed overwhelmed the system since 2008. This rise of big money in politics has endangered democracy and emboldened those who want to put democracy up for sale to aggressively attack the modest campaign spending regulations that still remain.

A recent Demos report explores how, since Citizens United, the following have occurred:

  • In the 2012 election .01 percent of all Americans contributed more than 28 percent of all individual contributions.
  • In the 2012 election, Sheldon Adelson spent an estimated $150 million, $98 million through dark money channels. In 1980, by contrast, the largest donor gave $1.72 million (inflation-adjusted).
  • A 2013 study finds, “millionaires receive about twice as much representation when they comprise just 5 percent of the district’s population than the poorest wealth group does when it makes up 50 percent of the district.”
  • Another 2013 study finds that the richest 1 percent of Americans are “extremely active politically and that they are much more conservative than the American public as a whole with respect to important policies concerning taxation, economic regulation, and especially social welfare programs.”

Americans are increasingly skeptical of claims that democracy by the wealthy is compatible with their interests. In a recent study commissioned by CNBC and Burson-Marsteller, 73 percent of American consumers believe that the government is more on the side of corporations than average citizens. Research by Pew suggests that trust in government has reached an almost record low, and the most recent ANES data find that 63.4 percent of Americans earning less than $30,000 agree (24.5 percent “strongly agree”) that public officials don’t care what people think.

As Jedediah Purdy notes in Dissent, “Unlike early Americans, who were obsessed with the decline and fall of republics, the justices seem to suppose that, once established, democracy cannot fail. This view flies in the face of history. It also suggests why the justices seem so complacent about the danger that their own rulings will erode democracy.” Purdy is correct, and the evidence is strong the dominance of money in politics has already overpowered the voices of middle-class Americans and Americans of color. As the evidence above suggests, Americans have very little voice in democracy, and increasingly feel that their government is not responsive. Low voting rates, particularly among the poor (far below average among OECD countries), are a symptom of our crisis of democracy. A recent poll finds that 54 percent of Americans who don’t vote say they don’t pay attention to politics because the political system is too corrupt.

But this is not the end of the story. Although a small group of unelected justices has attempted at every turn to weaken democracy — since 2006 the Roberts Court has struck down every money-in-politics law it has considered and removed critical protections for voting when it gutted the landmark Voting Rights Act —  it’s up to Americans to take it back.

Here are some proposals:

Public Financing

To counter the influence of big money in politics we need structures that encourage small donors to get involved. Such a system would mean that politicians would be dependent on, and thus responsive to, their constituents, not just rich donors. Connecticut is a great example of public financing. In Connecticut, 90 percent of legislative candidates and both gubernatorial candidates participated in that state’s clean elections program. Thesecandidates report being able to spend more time with their constituents. Once candidates were no longer exclusively dependent on wealthy donors and businesses, the influence of lobbyists decreased, which has been cited as an important step in guaranteeing paid sick leave to workers and raising the minimum wage.

Disclosure

In Citizens United, the justices upheld the constitutionality of disclosure, and in fact assumed that all the new money allowed into our politics would be transparent to voters,writing, “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.” But an effective disclosure system does not yet exist, and our political system is awash with undisclosed political contributions (see chart). Disclosure of political spending serves voters’ interests in knowing who is funding a political message and about a candidate’s financial allegiances; protects against corrupt political deal-making; and prevents circumvention of campaign finance protections such as contribution limits by allowing monitoring. In the current system, corporations and unionsface different disclosure regimes, with unions required to disclose their political spending. The FEC should update their rules, which a federal judge found created an “easily exploited loophole.”

Legal Reframing

It is key that the Court recognize a more commonsense standard for corruption (one supported by a majority of Americans). Justice Ruth Bader Ginsburg has said, “if there is one decision I would overrule, it is Citizens United. I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be.” Leading First Amendment scholar and former University of Chicago Law School dean Geoffrey Stone writes “that these five justices persist in invalidating these regulations under a perverse and unwarranted interpretation of the First Amendment is, to be blunt, a travesty. These decisions will be come to be counted as among the worst decisions in the history of the Supreme Court.” That’s quite a feat for our Supreme Court, given its ugly history.

Getting money out of politics should not be a partisan issue – a recent survey of likely voters finds that likely voters (including Republicans) are more apt to support than oppose public matching funds for small donations and public funding for elections. Majorities from both parties support disclosing corporate spending (see chart) and more than a million people have signed a petition supporting a proposed SEC rule to require publicly traded corporations to disclose their political spending.

The problem, of course, is that the same people who benefit from money in politics are pulling the strings right now. The American citizens are united in opposing money in politics. Now, we need a mass movement from ordinary Americans to take back our democracy.

Sean McElwee is a research associate at Demos. Follow him on [email protected]

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