“It would be an impossible dream. But I’d love to see Citizens United overruled,” says Supreme Court Justice Ruth Bader Ginsburg to Vox, who has previously called the 2010 case one of the most disappointing decisions of her long career on the bench. In Citizens United v. the FEC, the justices narrowly ruled — a 4-5 split — that political spending is protected under the 1st amendment, which allows corporations, unions and special interest groups to spend virtually unlimited money on political campaigns as long as it’s done independently of a party or candidate.
Recently, Federal Prosecutors implicated President Donald Trump in a fraudulent scheme to silence women during his 2016 campaign by directing Michael Cohen to make payments so they would not go public with their accusations. The Southern District of New York is the first to directly connect the President with these campaign violations, stating that Cohen made these payments “in coordination with and at the direction of” President Trump. They went on to say that “while many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows.”
As these headlines rolled in one after another, I found myself asking how we, as a society, came to the point where we had candidates for federal political office acting in a way that is all to reminiscent of the Gilded Age of American politics? How has the line between what is legal funding and illegal funding been blurred so completely? When examining and attempting to answer these questions, I discovered the problem to lie in our ineffective and faulty campaign finance laws that are the product of the Citizens United case.
Related: Michael Cohen Pleads Guilty to Illegal Campaign Contributions ‘At the Direction of a Candidate for Federal Office’
Although Citizens United was ruled on in 2010, the issue began in 2002 with the Bipartisan Campaign Reform Act (BCRA) — otherwise known as the McCain-Feingold Act, after it’s senior congressional backers. Essentially, BCRA targeted the use of money raised outside of or in excess of the limitations of campaign finance law as it stood at the time (“soft money”) and prohibited national parties from raising funds in this grey area, requiring that some aspects of the election be funded by federal funds (“hard money”). This allowed for the limitation of campaign spending and reformed the areas of previous legislation that allowed for unchecked campaign spending, thus creating more transparent elections.
However, as the story frequently goes in American Politics, all good things must come to an end.
Citizens United, a conservative not-for-profit organization, fought all the way to the Supreme Court insisting that sections 201 and 203 of BCRA were unconstitutional as it applied to their film: Hillary: the Movie which questioned Hillary Clinton’s ability to be president during the primaries of the 2008 presidential election. The BCRA required the disclosure of donors to an electioneering communication, as well as a stated disclaimer if the candidate does not authorize such communication and prevented corporations from funding these communications from their general treasuries, respectively).
The decision stated that corporate funding of independent political groups in elections cannot be limited, based on the idea that corporations have the same rights as citizens under the First Amendment. The majority, made up of Chief Justice John Roberts, Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, maintained that as a democratic society, political free speech cannot be restricted, even to corporations, and that money is an expression of speech in a political context.
This has dramatically changed how campaigns run, allowing the creation of super PACs that can accept unlimited contributions from donors and has allowed candidates to stay in races longer while flooding the airwaves on television and social media with political advertisements. PACs are political committees established by corporations, labor unions and trade organizations to spend money on elections and make donations to candidates already in office without being run by a single party or candidate. However, PAC donations are limited. A super PAC, on the other hand, can accept unlimited donations and spend an unlimited amount towards supporting or denouncing a candidate — while still not contributing directly.
Since Citizens United, the landscape of elections — particular federal elections — has changed monumentally. Before the ruling, the amount of funds that candidates could accept was finite, and it allowed for a less costly election cycle. Now, as seemingly every election breaks fundraising records, a candidate is simply unable to compete without wealthy donors, substantial fundraising and active voter donations. According to the Open Secrets Center for Responsive Politics, in 2010 the average cost to run a winning campaign for the House of Representatives was $1,632,142, which was up 70% from the last decade, and for the Senate costs reached $3,127,947. Since 2010, the costs have increased to an even higher total of $2,001,425 for the House and $5,256,327 for the Senate during the 2018 midterm elections. The high cost of running for federal office often puts newcomers facing well-known incumbents — who often have more financial backing from supporters and political parties — at a substantial disadvantage that is difficult to correct, creating an unfair playing field at all levels of government.
Related: Michael Cohen Is Likely To Start Cooperating With Prosecutors & It’s About Time
While many have chosen not to question either the rise of big-money driven politicians or the lack of trust that it has fostered in the American government and those who represent us in it, I feel that the way the system has operated in the wake of the SCOTUS decision should be appalling to all political scientists and enthusiasts alike. In the dissenting opinion, Justice Stevens wrote “a democracy cannot function effectively when its constituent members believe laws are being bought and sold,” and this encompasses the crux of the problem created by the ruling. The American experiment was created on the idea of rule ‘by the people and for the people,’ but as we falsely personify billion dollar corporations and massive super PACs, we’ve created rule ‘by the people, for the wealthy.’ Although we have a long and storied history of government-sanctioned classism and inequality, I don’t feel that we should continue to settle for that.
While, as a society, we have made great strides to attempt to close the class divide by providing a reasonable minimum wage, welfare programs and attempting to finally have affordable health care for all Americans (with much work still left to be done), we have done nothing to make politics and the government accessible for all Americans regardless of their economic situation.
Why would Marco Rubio listen to the parents of the slain victims from Stoneman Douglas when the NRA is pumping money into his campaigns? Why would Donald Trump win an election by canvassing, phone-banking and fundraising when he can get Michael Cohen to silence his accusers instead? Why should these overfunded and oversized super PACs and corporations have more of a voice in politics than those who are directly impacted by it? By giving wealthy corporations the opportunity to have the same Constitutional protections — and political voice — as living, breathing and voting citizens, we have raised the proverbial bar for what it takes to have our representatives listen to our voice and our concerns.
As we continue to allow this cycle to churn, we are failing ourselves, our founders and our government as a whole. No political institution is infallible or immortal, and as we allow our politicians to lose sight of the very ideals the government was created to embrace and enforce, we march ever closer to the end of a functional representative democracy.