The Impact of Citizens United vs The FEC on the US Political Process

Jake Taylor

A3

Citizens United vs FEC

Abstract:

In 2010 the entire United States political process changed as we know it. A landmark hearing occurred regarding the creation of the politically charged info-movie/campaign under the title “Hillary the Movie”. This movie dated back to Hillary Clinton’s 2012 election campaign and was financed by the political action group, or PAC, Citizens United.[1] The Federal Electoral Commission, in their lawsuit, stated that aspects of this movie went against the precedent Bipartisan campaign reform act in terms of use of interest group funds for financing a highly critical movie. Up until this point in the US political and electoral history, mudslinging campaigns had been in effect but not the extent of the money which Citizens United had put forward towards this piece. The court ruled that Citizens United had every right to publish the slander piece through their free speech rights as an institution. This landmark ruling essentially superseded every previous piece of legislation regarding financial regulation in US elections, such as the McCain Feingold act and the bipartisan campaign reform act. This in turn directly increased the amount of money used in presidential elections and midterm election exponentially through outside funding. Furthermore, this landmark ruling affected political participation through the advent of SuperPAC’s. Considering, whatever stringency had been placed upon interest groups pooling money together had existed before now being gone, groups like the National Rifle Association and Citizens United were able to pool funds together like never before. They were also able to do this under the guise of a general SuperPAC name, such as the “Congressional Leadership Fund”. Whether or not one believes in free speech down to the constructionist interpretation that was taken by the court, this ruling changed our political process more than any case in the past several decades. Although there has always been a great influx of money into presidential election campaigns, we are now seeing midterm candidates being forced to raise money and endorsements every single year, as opposed to focusing their time on solely legislating. Another problem that was created from this ruling was the anonymity of much of the money flowing into these elections. Obviously American PACS such as Citizens United need to disclose their donations to larger SuperPAC’s, but there is little regulation regarding foreign bodies donation to SuperPAC’s who then give to candidates- it is incredibly difficult to follow a paper trail of such vast sums of money ironically, and I will try to do so in this paper. Finally, a point I want to address in this paper is voter participation and manipulation. More than ever before voters have access to information at their fingertips in the form of smart phones and social media, but also more than ever before, voters are subject to more misinformation than ever before. With this enormous influx of money into any process, there is bound to be some corruption slipping through the cracks and I intend to also address that in this paper. Although this ruling quite literally gave people and corporations “more freedom” in terms of the first amendment, I argue that this freedom was not for naught, and vastly hurt the American people more than it help it. This new process is a disservice to the founding fathers and our once great democratic political process.

Presidential and Midterm Donations and “Invisible Primaries”:

The Citizens United vs FEC ruling allowed for groups to pool money together and donate to any specific candidate, presidential and congressional, usually being the candidate who could support that groups interest. For example, the NRA is unlikely to be giving millions of dollars in campaign funds to a southern democratic candidate trying to upend the conservative regional majority and legislate on gun control. Seen below is a graphic showing just how dramatic this increase in outside spending midterm elections has been. A Congressman in the United States House of Representatives serves for 2 years before facing re-election, hence where the problem with this court ruling lies. As seen by the graphic below, outside spending has increased from 200 million in 2016 to a little over 1 billion in 2016. In that same span, until 2020, this spending has further tripled up to three billion dollars.[2] At the rate we are going this money should be close to 10 billion by the next election cycle and this is a great cause for concern.

One may wonder why this large increase in spending poses such a risk to the American people and the political process in general and it boils down to two things: campaign fundraising time, and constituent representation. Political Candidates in the United States must spend an unreasonable amount of time fundraising in order to meet a threshold to be competitive with the rest of the candidate field. For example, John F. Kennedy, a widely popular candidate, announced his campaign for President on January 2nd, months before the 1960 election.[3] In stark contrast, Donald Trump stated his interest for the 2016 election in 2013, years before, and formally announced in early 2015, about a year and two thirds before the 2016 election. This early announcement means candidates will spend more time proportionally fundraising than they would be legislating and creating a platform. Firstly, as stated previously, Congressman only serve for two years within the House of Representatives. That means, if they are to stay up to the rest of the pack in terms of fundraising, incumbent Congressman must dedicate a grand majority of their time to fundraising and preparing for the next election cycle even while they have just been re-elected or are serving. In 2018, the incumbency re-election rates for a member of Congress was 91%, an astonishing figure.[4] The House of Representatives was created by the founding fathers to serve as the “the peoples house” with its purpose to have it represent the diversity and everchanging interests and demographics of this country. The reason I stated in the abstract that this court ruling has done the founding fathers a disservice is because it allows for incumbents to reign supreme until new legislation or lawsuits occur. How can a body of government be the “House of the People” when only 9% of it changes every two years? This is not what was intended upon its inception and the Citizens United ruling will only allow for more of this in years to come.

The Next problem with Citizens United regards constituent representation. Following off of the previous point about candidates more and more time campaigning and fundraising, they have less time to actually represent their constituents. Although this Supreme Court ruling technically afforded more freedom to the people through the first amendment it also indirectly reduced their ability to be represented by their Congressman- as they would be spending time elsewhere than Washington. It is estimated that Congressman spend up to four hours per day fundraising if they are to stay competitive in a subsequent race and that number is four hours too high.[5] The people deserve a candidate to legislate for them, not someone who will be only worried about seeking re-election come next election. More disclosure of Congressional schedule needs to be released so that people may know how long their regional Congressman is spending working for them, or on the phone with donors.

The Paper Trail/ Anonymity of SuperPAC’s and Mudslinging:

I touched upon it in the abstract, but this supreme court ruling allowed for the advent of SuperPAC’s, or Super Political Action Committees. SuperPAC’s are essentially large groups of interest groups or corporations which pool funds together and donate under the guise of one name. Listed below is the outside spending by these groups in the previous midterm election cycle. As once can see, often these names are hidden and are very ambiguous, so voters often do not know who exactly composes these SuperPAC’s without doing extensive research. One major pitfall of Citizens United vs the Federal Electoral Commission, pertained to mudslinging. By allowing Citizens United to finance this largely critical piece of Hillary Clinton in 2010, this paved the way for identity politics in the United States. More than ever before we have levels of polarization in this country which I believe has to do with the obscene level of money in politics through this ruling. As seen in the January 6th riots on Capitol Hill, this country is immensely divided, and this is partly because of the level of mudslinging and polarized advertisements and news that is so prevalent today. Of the 293 Million dollars spent by the largest SuperPAC in the country, the Senate Leadership Fund, only 8 million dollars went to campaigns “in support” of conservative candidates. 278 million, a grand percentage of this fund, went solely to the purpose of marketing and campaigns “against” Democrats.[6] This stood out to me more than anything after reviewing the level of money in campaigns following this court case. By allowing for “Hillary the Movie” to be created, the US Supreme Court set a precedent, normalizing the bashing of opposition candidates. So yet again, although this case expanded the freedom of speech, it did a disservice the integrity of the process and the candidates. Gone are the days of political discourse across the aisle as was intended by the constitution, and this Supreme Court ruling played a huge part in that polarization.

Next, this anonymity highlighted within the SuperPAC diagram above, allowed for great corruption in the US presidential race. One of the few regulations that exists is that a candidate may not accept solicited funds from a foreign national or corporation without disclosure or approval from the Federal Electoral Commission. In the 2016 election, Jeb Bush was battling with Donald Trump for the Republican bid to be the next President. He raised far more than any other candidate in the party, including Trump, considering his families backing of PACS previously and his entrenchment in the mainstream of what then was the Republican party. It was then discovered after a probe from the FEC, that Bush had received millions in donations through a SuperPAC with money that had originated from a Chinese state owned enterprise, something that is very illegal.[7] Obviously Bush was caught and fined for his actions but the worrying thing was that this money came under the name “right to rise” a traditional conservative group which had back other candidates previously and had good standing within the party. If this money was able to slip through the cracks for a period of time, who is to say that other corrupted foreign funds didn’t make their way into other presidential elections or SuperPAC’s. Citizens United vs the FEC, greatly affected the campaigning process by allowing foreign bodies to slip their way into elections through third party donors. It is almost impossible to regulate every single dollar of SuperPAC donations to candidates and who they themselves receive their money from, so this case created a dangerous precedent, and something must be done to further regulate these funds/disclose this information.

Misinformation:

The final aspect of this case I wanted to address pertains to misinformation within political advertisements, as they were the root of the original court case in question. This also leads off of the previous comments made about polarization. The American people are blessed in that more than many countries, we have access to a plethora of information at our fingertips with the advent of smartphones and basic wireless service available in most places. Considering the lack of scrutiny on these campaign contributions, fact checking is now a full time job for many software developers across the country. I would argue that this influx of money into politics, which creates so much charged an negative advertisement, actually led to the banning of the President of the United States from social media just months prior. Had he not been incessantly tweeting and posting regarding false news speculation he would have remained on the platform. The issue is we must start at the source. The Pew Research Center polled that only 46% of Americans had “some” confidence in the news of the election results[8]. Going back to the days of integrity and lack of corruption in politics, this is an embarrassment. These insane levels of mistrust in the government and the news have a root of causality at money, and these levels must be regulated in order to bring back that voter trust and remove the seeded voter doubt from these SuperPAC’s. I believe this issue will resolve itself over time with more stringent fact checking policies on private social media platforms, but even those could be met with lawsuit. In order to combat misinformation straight to the homes of American viewers, the FEC must work hand in hand with the networks and the creators of ads, establishing a precedent where speech is free, but also true when it comes to politics.

What can be done:

In order to combat the first issue I addressed regarding the invisible primaries, is quite a simple fix but would be immensely difficult to pass. Legally speaking, setting time limits on when a candidate can formally announce candidacy would help combat this issue of the invisible primary, but would not be able to curb early informal fundraising. Furthermore, setting time limits on how long candidates could spend fundraising could be a solution, but would be incredibly difficult to execute and enforce. The best way to dissuade this level of financial fundraising without bureaucratic legislation which would take much time, is scrutiny. Companies are heavily scrutinized by their donations, such as has been the fallback against Chik-fil-A for them supporting allegedly homophobic causes, so why can’t candidates be scrutinized for their times soliciting these donations. The presidential schedule is available to all and many people criticize presidents for playing golf or doing other things in the office because the information is so readily available. However, for Congressman, this information is difficult to come by and publishing and scrutinizing daily schedule could dissuade candidates from spending so much time fundraising, taking the power out of the hands of the SuperPACS.

Again, with the issue of anonymity of these SuperPACs, it will be hard to enforce or follow the paper trail in the future, but more intense fines and punishments should definitely be in place. If a candidate knows they cannot take money from a foreign body and they do so, they should be held to the highest standards of the law, and not just face a fine, but prosecution. This again will shrink the value put into these SuperPACS along with their influence. Also, further disclosure of the names of the groups within these SuperPACS would let the American people know exactly where this money is coming from without having to do extensive research as I had to. Since it is hard to change this process without legal action, we must put power back in the hands of the people through scrutiny of the process, as the founding fathers intended.

Finally, misinformation should also be met with heavy fines and prosecution. As previously mentioned, the FEC will have to work with cable networks considering they often operate outside of social media, in order to curb the level or charged advertisements. This however is quite a difficult thing to do as well though. Considering Citizens United won this Supreme Court case, I find it difficult to further limit the information on the airwaves- the American people just need to stay aware and informed in order to combat this misinformation and polarization.

Many of these issues will be incredibly hard to combat considering this precedent was set by the highest court in the land. This being said, the FEC can definitely do something to combat some of these issues through marketing campaigns of their own telling the American people to stay informed. If the FEC cannot limit what is put on the air, they can at least tell the American people to remain informed and be wary of what is out there. Until Candidates begin to reject the use of SuperPAC money, this cycle will only continue and increase until subsequent lawsuits. It is up to the integrity of the candidate to decide if they can win without this money and restore integrity back to our electoral process, returning the “house of the people” and the process itself, back to the people.

[1] https://www.forbes.com/sites/georgeleef/2015/09/22/revive-the-sedition-act-to-salve-hillarys-hurt-feelings/?sh=362b5afb7b70

[2] https://www.opensecrets.org/outsidespending/cycle_tots.php

[3] https://www.jfklibrary.org/archives/other-resources/john-f-kennedy-speeches/presidential-candidacy-19600102

[4] https://www.opensecrets.org/elections-overview/reelection-rates

[5] https://gai.georgetown.edu/an-inside-look-at-congressional-fundraising/

[6] https://www.opensecrets.org/outsidespending/detail.php?cmte=C00571703&cycle=2020

[7] https://www.politico.com/story/2019/03/11/jeb-bush-super-pac-china-1216590

[8] https://www.pewresearch.org/topics/misinformation/