5 years after Citizens United, 5 things the Supreme Court got wrong

By Bill Allison, senior fellow at the Sunlight Foundation

In the 17,000-word majority opinion in Citizens United v. Federal Election Commission, which held that incorporated entities have a First Amendment right to spend as much money as they want influencing the political system, Supreme Court Associate Justice Anthony Kennedy made numerous assertions to justify the decision that gave rise to super PACs, dark money and ever more endless barrages of political advertising. But not every fact Kennedy used to buttress his opinion is necessarily factual. Here are five of his biggest errors.

1) PACs “…[do] not allow corporations to speak.”

Kennedy argued that political action committees are too cumbersome for corporations to create, and do not allow groups to get their message out. Traditional PACs, started by everything from international law firms and rocket manufacturers to social welfare organizations that track millions of members across thousands of chapters in all 50 states, found it “unburdensome” enough to pay for $1.27 billion worth of political activity at the federal level. In fact, it was so convenient that Citizens United made all $1 million of its political ad expenditures at the federal level using its PAC rather than its corporate treasury: They let their PAC do their speaking.

2) Government may not “impose restrictions on certain disfavored speakers.”

Kennedy argued that government cannot ban speech by “distinguishing among different speakers, allowing speech by some but not by others.” Yet for decades, tax law has barred — and courts have upheld — bans on political activity by churches, charities, universities and other nonprofit organizations. Not only can ministers not endorse candidates, nor can a university president support one party’s education platform over another’s, but they are also barred from setting up their own separate PACs to do so. Campaign finance law also prohibits government contractors from contributing to candidates, a ban that was recently upheld by the courts.

3) “…independent expenditures do not lead to, or create the appearance of, quid pro quo corruption.”

Though he didn’t know it at the time, the enactment of another law that has occupied a fair amount of the court’s time, the Affordable Care Act, belies that statement. The House Energy and Commerce Committee unearthed emails from 2009 between White House officials and representatives of the Pharmaceutical Research and Manufacturers of America (PhRMA) in which the latter promised the former that, in exchange for favorable terms for the industry in the ACA, they would help fund an advertising campaign supporting the law. PhRMA’s lobbyists noted they’d already spent millions praising members of Congress who’d voted to expand health insurance access for children. The committee concluded that the independent spending was done to win favorable policies — certainly creating at the very least the appearance of a quid pro quo.

4) “Transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

This statement would be true, except that it assumes our campaign finance system is transparent. It is anything but. Never mind the hundreds of millions of dark money donations pouring into elections: Even where there is disclosure of donors, there is little disclosure of donor’s motivations. Sheldon Adelson, the casino mogul, and his wife contributed more than $90 million to super PACs in the 2012 election. Among his top concerns were making changes in the Foreign Corrupt Practices Act (FCPA). The Securities and Exchange Commission, the Justice Department and the Federal Bureau of Investigation had investigated his company, Las Vegas Sands, for violations of the act. Oddly enough, revisions to the FCPA did not feature in any of the thousands of ads his contributions paid for.

5) “The appearance of influence or access, moreover, will not cause the electorate to lose faith in our democracy.”

Public trust in the federal government is at historic lows. Congress’ approval levels are at historic lows. Even the Supreme Court is not immune: Only a third of Americans believe that the nine justices make decisions based on the law alone, rather than on their political preferences.

A pair of political scientists recently compared the policy preferences of average Americans to those of the wealthy and well-heeled special interests. The conclusion? While big business and wealthy elites have enormous impact on public policy, the influence of the average American on the government that represents them is at a “non-significant, near zero level.” Maybe there’s a connection between that finding, and the fact that 80 percent of Americans are opposed to the Citizens United decision, and the door it opened to big donors.