Five years ago, the United States Supreme Court handed down an important decision in Citizens United v. Federal Election Commission, (No. 08-205, 558 U.S. 310 (2010)). In Citizens United, the Supreme Court held that the protections afforded by the First Amendment prohibit the government from restricting independent political expenditures by a nonprofit corporation. (Citizens United has since been expanded to include for-profit companies, labor unions, and associations.) What is the central holding of Citizens United? Has this decision had the effect on election spending that was feared?
In 2002, the Federal Election Campaign Act of 1971 was amended by way of the Bipartisan Campaign Reform Act of 2002 (commonly referred to as the McCain-Feingold Act). This Act prohibited corporations and unions from using their general treasury to fund “electioneering communications” (broadcast advertisements mentioning a candidate) within 30 days before a primary or 60 days before a general election. In 2004, Citizens United, a conservative nonprofit 501(c)(4) organization, filed a complaint before the Federal Election Commission (FEC), charging that advertisements for Michael Moore’s film Fahrenheit 9/11, a documentary critical of the Bush administration’s response to the terrorist attacks on September 11, 2001, constituted political advertising and thus could not be aired within the 30 days before a primary election or 60 days before a general election. The FEC dismissed this complaint and then a second complaint filed by Citizens United. As a direct result of these decisions, Citizens United produced its own “documentary” films, including one entitled “Hillary: The Movie”, which was highly critical of Hillary Clinton.
In January, 2008, the United States District Court for the District of Columbia ruled that the television advertisements for “Hillary: The Movie” violated the restrictions of the McCain-Feingold Act of “electioneering communications” within 30 days of a primary. Although Citizens United asserted that the film was fact-based and nonpartisan, the lower court found that the film had no purpose other than to discredit Clinton’s candidacy for president. The Supreme Court agreed to hear the case. After oral argument but before a decision was handed down, the Supreme Court directed the parties to re-argue the case, essentially expanding the potential ruling. The Supreme Court ultimately overruled two prior finance cases (Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission) and held that, “…the government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”
After Citizens United, corporations and unions could make independent expenditures. However, a separate provision of the Federal Election Campaign Act held that individuals could not contribute to a common fund without it becoming a political action committee (“PAC”). PACs, in turn, were not allowed to accept corporate or union contributions of any size or to accept individual contributions in excess of $5000. Subsequent to and as a direct result of the Citizens United holding, the D.C. Circuit Court held that such restrictions on the sources and size of contributions could not apply to an organization that made only independent expenditures in support of or opposition to a candidate, but not contributions to a candidate’s campaign. (speechnow.org v. Federal Election Commission). This holding has lead to the creation of “super PACs”, which make no contributions to candidates or parties and so can accept unlimited contributions from individuals, corporations and unions.
Have these decisions and the creation of super PACs had any real impact on election spending? The answer is a resounding yes, and the numbers are staggering.
Overall, outside spending for Congressional races increased from $137 million in 2008, to over $338 million in 2012. A good example of the local impact of Citizens United on campaign spending is the California 52nd Congressional District. In 2008, the highest amount of outside spending on a candidate was $223, 691, for Robert Watkins (R), who lost. The total amount of outside spending in 2008 for the congressional seat in the 52nd was $236,003. In the first full election cycle after Citizens United and speechnow.org (2012), outside spending for the 52nd district jumped to over $8,500,000, an increase of more than 35 times. Supporters of Brian Bilbray (R) spent $698,123 supporting him, and $3,572,424 opposing Scott Peters (D). Supporters of Scott Peters (who won) spent only $235,464 in support of Peters, and $4,018,104 opposing Bilbray. That’s a staggering $7,500,00 which was spent to oppose a candidate’s candidacy, as opposed to supporting an individual candidate. This lead to an almost non-stop barrage of television ads, direct mailings, and phone calls to voters. The television ads were so frequent and repetitive, it was as if the candidates were sponsoring the show itself. (“This News Hour brought to you by ‘I hate Scott Peters’ and paid for by supporters of Brian Bilbray.”) As a resident of the 52nd Congressional District this author bore personal witness to this onslaught. Did it have any impact? Yes. This author, for one, started to look at who was sending and sponsoring the negative campaigning, and adjusted his voting preferences accordingly. The question remains whether Congressional races can be “bought”, or has it all become “white noise” to most voters? You decide.