The Foundation of Citizens United Is in Ruins

How Outside Groups’ Interference in State and Local Elections Has Disproved the Supreme Court’s Assumption of Independence

By Mike Tanglis

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Introduction 

The Supreme Court’s 2010 decision Citizens United v. Federal Election Commission opened the door for outside entities to collect and spend an unlimited amount of money to influence elections.

The decision was based on an assumption that campaign spending by outside groups is truly independent of candidates and, therefore, cannot buy favors or otherwise corrupt lawmakers. If one were to describe the Citizens United decision as a house, it would be reasonable to describe the notion of independence of these third-party groups as the foundation on which the house was built.

The Court’s majority opinion, written by Justice Anthony Kennedy, relies on the 1976 Supreme Court Decision, Buckley v. Valeo, to assume that outside groups inherently act independently. TheBuckley opinion states: “The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” 2 Buckley also found that limiting the size direct contributions to candidates was constitutional because such contributions had the potential to cause corruption.

In Citizen United, the Court determined that limiting the campaign expenditures of third-party entities was not justified because those entities’ expenditures did not pose a sufficient risk ofprovoking corruption. Using the same rationale, a subsequent Court decision also invalidated limits on donations to these outside groups as long as the funds are not used to make direct contributions to candidates or parties.

The Buckley court was circumspect in reaching its conclusion. As Public Citizen’s Scott Nelson and former U.S. Solicitor General Seth Waxman, et al., wrote in an amicus brief filed in a case related toCitizens United, “Buckley was considerably more cautious and equivocal than Citizens Unitedappears to suggest.”4 Buckley, as Nelson and Waxman note, held that “independent advocacy … does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions.” [emphasis added]

Kennedy’s description of Buckley in the Citizens United decision, however, was far more absolute than the words in Buckley itself. Kennedy, citing Buckley, wrote: “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with  a candidate.”

Even if the Buckley Court was dead certain in 1976 that outside expenditures were truly independent of candidates, it would have been problematic for the Citizens United Court to rely on that 1976 conclusion in 2010 given how much the independent expenditure landscape had changed by then.

Because there was dramatically less outside spending in elections, the sample size to test the independence of the expenditures was relatively small in 1976. Within a year of the Buckley’sannouncement, however, evidence of blurred lines and possible coordination appeared.

In 1977, the Federal Election Commission (FEC) “began a full-scale investigation into the legality of more than $150,000 in expenditures”8 made in support of Ronald Reagan by an outside group during the Republican primary in 1976, the same year Buckley was announced. According to research at the time, “several [American Conservative Union] staff members worked for and were paid by the Reagan committee at the same time that the ACU was engaged in a vigorous, supposedly independent public campaign supporting the Reagan candidacy.”

In the time since Citizens United, candidates have commonly used purportedly “independent”groups as an accessory of their campaigns. For instance, in 2012, both major party presidential nominees endorsed and raised money for super PACs dedicated to supporting them.

The 2016 presidential campaign was no different. After working for Donald Trump, “two of the candidate’s senior staffers formed the Rebuilding America Now super PAC almost immediately after leaving the campaign,” the Campaign Legal Center reported.12 Rebuilding America Now supported Donald Trump.

Meanwhile, the leader of a super PAC called Correct the Record openly acknowledged his group’s intentions. “Going forward, Correct the Record will work in support of Hillary Clinton’s candidacy for president, aggressively responding to false attacks and misstatements of the secretary’s exemplary record,” said David Brock, the group’s founder. A spokeswoman for the group claimed that Correct the Record could legally coordinate with the Clinton campaign as long as it avoided purchasing television ads and confined itself to certain activities. “The FEC rules specifically permitsome activity – in particular, activity on an organization’s website, in email, and on social media – to be legally coordinated with candidates and political parties,” the spokeswoman said.15 Regardless ofwhether they were legal, the group’s activities plainly were not “independent.”

Much attention has been paid to the use of super PACs to evade campaign finance laws at the federal level. But the massive amounts of spending by outside groups, as well as “brazen” and“sophisticated” evasions of laws aimed at preventing coordination, have also occurred at the state and local levels. A 2014 Brennan Center report, for instance, found that “since 2010, candidate behavior in elections at all levels often has blurred the difference beyond recognition. Many candidates, in raising massive sums for the outside groups that exist often exclusively to support them, appear to be as closely involved as in their own campaign fundraising.”

As this report will discuss, purportedly “independent” groups at the state and local levels often arerun by candidates’ close allies. Prior to Citizens United, jurisdictions were permitted to restrict the size of contributions to outside groups that spend the money to influence elections. Such limits are no longer permitted. Consequently, it is possible for wealthy supporters of candidates to make unlimited contributions to outside groups that effectively serve as unregulated campaign arms for the candidates.

In mayoral races and even elections for unpaid school board seats, Citizens United has given rise to a shadow campaign finance system. In many cases, little differentiates a candidate’s campaign –other than the existence of contribution limits – from closely aligned third-party groups.

Outside groups raising unlimited amounts of money – all while operating as an arm of the candidate campaigns – has warped state and local politics to a point where even the smallest, most local races may be flooded with outrageous sums of outside money. Dedicated would-be public servants, who are in no way polished politicians and fundraisers, now have to ask themselves: Is it really worth facing hundreds of thousands of dollars in negative advertisements just to win an unpaid school board seat?