By Seth Endo & Liz Kennedy
At a conservative political conference last month, it was announced that a consortium of advocacy organizations backed by the Koch Brothers intends to spend about $900 million to influence the 2016 elections. Two elements to this story have (rightly) received a great deal of attention. First, the number is staggeringly large—it is almost equal to the amount that is expected to be spent by the presidential candidates of the two major parties. Second, most of the money will likely be spent by organizations that do not disclose their donors, leaving the public in the dark about whom else is funding the ideological agenda being advanced by shadowy groups like Americans for Prosperity. But a third, larger, issue deserves more attention—the story of how the explosion of private political spending is corrupting our democracy. This story is about how the Koch Brothers and other wealthy interests have enhanced political access and influence—and thus representation—that derives from the size of their wallets, not the power of their ideas. And, fittingly, this story has its roots in the Supreme Court’s Citizens United v. FEC decision, which was issued almost exactly five years prior to the Koch Brothers’ announcement.
On January 21, 2010, five justices struck down a federal statute that prevented corporations from using their treasuries to fund ostensibly independent expenditures supporting or opposing candidates in Citizens United. The Supreme Court held that the statute was unconstitutional under the First Amendment because “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” The majority was able to reach this conclusion because, as Justice Kennedy articulated it, they believe that “[i]ngratiation and access…are not corruption.”
The Court’s new understanding of corruption is inconsistent with the real world and, ultimately, the bedrock democracy-enhancing purpose of the First Amendment.
This approach marked a radical break with longstanding aspects of the Court’s money-in-politics doctrine, which took a much more expansive view of corruption. For example, in Nixon v. Shrink Missouri Government PAC, the Court upheld state contribution limits, stating, “In speaking of ‘improper influence’ and ‘opportunities for abuse’ in addition to ‘quid pro quo arrangements,’ we recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors.” Moreover, it has become increasingly obvious that the Court’s new understanding of corruption is inconsistent with the real world and, ultimately, the bedrock democracy-enhancing purpose of the First Amendment.
Especially as its influence seeps through the Roberts Court’s jurisprudence (recall how, in McCutcheon v. FEC, the Court relied on Citizens United’s cramped definition of corruption to invalidate the aggregate federal contribution limits), we should not forget that the Citizens United decision was at odds with a significant portion of the Court’s precedent. The decision directly overturned holdings from two cases: Austin v. Michigan Chamber of Commerce and McConnell v. FEC. In Austin, the Court upheld a state restriction on corporations’ use of general treasury funds for independent expenditures in state elections, recognizing that “[c]orporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures” And in McConnell, the Court upheld the exact same statute challenged in Citizens United. The McConnell Court understood that that corruption of government “extend[s] to the broader threat from politicians too compliant with the wishes of large contributors.”
So what happened between McConnell and Citizens United?
As Justice Stevens noted in his dissent, “The only relevant thing that has changed since Austin and McConnell is the composition of this Court.”1
That a small shift in the Court’s personnel would lead to such a casual disregard for the principle of stare decisis (i.e., the legal doctrine that generally requires adherence to precedent) is troubling. And legal commentators have not shied from criticizing the rhetorical moves in Citizens United. Justice Nelson of the Montana Supreme Court called the reasoning “smoke and mirrors.” Justice Ginsburg said, “If there is one decision I would overrule, it is Citizens United. I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be.” First Amendment expert Geoffrey Stone likewise opined, “That these five justices persist in invalidating these regulations under a perverse and unwarranted interpretation of the First Amendment is, to be blunt, a travesty. These decisions [Citizens United and McCutcheon v. FEC] will be come to be counted as among the worst decisions in the history of the Supreme Court.”
The decision looks even worse when one sees how Citizens United’s approach to corruption is fundamentally at odds with the real world of politics, where money influences legislative outcomes, and even Justice Kennedy’s own conception of democracy, which posits the accountability of elected officials to their voting constituents.
A few months ago, Professor Daniel P. Tokaji and Renata E. B. Strause of Ohio State’s Moritz College of Law released a report that examined the effect of independent expenditures on legislators’ conduct, finding that “[i]ndependent expenditures drove the agenda.” As one former representative explained:
Even if it’s in the back of their mind you can’t tell me that if somebody spends a couple of million dollars in your race that you’re not going to . . . that’s not going to affect the decision making process.
And a former senator acknowledged that big outside spenders are given greater access to legislators than the general public, saying:
I mean if somebody has got somebody that’s coming in to help them and they’re spending huge amounts of money, maybe as much as the person’s spending on their own race or their own campaign or close to it, I mean those people are – they’re going to have somebody’s ear.
Senator Rubio said, “I don’t know a single person in this room who has ever been to my office asking from government any special access.” Perhaps Senator Rubio meant what he said. After all, he traveled to the Koch Brothers’ conference; they didn’t have to bother with going down to his office.
More than eighty percent of Americans consider it corruption when financial supporters receive such enhanced access and influence from members of Congress. And they are right because this differential influence and access has a dramatic impact on legislative policy-making.
We see this with the Koch Brothers. At the conference where the plan to spend almost $1 billion was announced, Senators Rand Paul, Marco Rubio, and Ted Cruz all participated in a panel. And, addressing a question about the influence of the wealthy, Senator Rubio said, “I don’t know a single person in this room who has ever been to my office . . . asking from government any special access.” Perhaps Senator Rubio meant what he said. After all, he traveled to the Koch Brothers’ conference; they didn’t have to bother with going down to his office.
Additionally, the Koch Brothers’ legislative agenda has taken center stage. For example, at the urging of the Koch-controlled Americans for Prosperity, which spent more than $15 million on television advertisements in 2014, the new Republican-controlled Congress has prioritized discussions on the Keystone XL pipeline that would run from oil land leased by the Koch Brothers in Canada down to Nebraska.
To put it plainly, Justice Kennedy was wrong: financially-driven influence and access can and do lead to corruption.
More generally illustrating the anti-democratic effect of big-money politics, after examining about 1,800 policy outcomes, two political scientists from Princeton University released a study that found corporate interests have “substantial independent impacts” on policymaking while average citizens “have little or no independent influence.” One example of the practical effect of this is the stagnation of the minimum wage despite support for a raise from a majority of Americans across parties.
To put it plainly, Justice Kennedy was wrong: financially-driven influence and access can and do lead to corruption—that is, to legislative outcomes that appear driven by the financial interests backing them rather than the support of the public.
At its core, such corruption is undemocratic because a democracy is a political system in which citizens are political equals. As Justice Kennedy himself said, “Democracy is premised on responsiveness.” Echoing these conceptions of democracy, legal scholar Nicholas O. Stephanopoulos, a professor at the University of Chicago Law School posits, “If it is the people who are sovereign, then it is their preferences that should be reflected in the positions of their representatives.” Instead we see the preferences of individuals being pushed out of politics by the wishes of big-money spenders, whose contributions allow them to dominate legislative policy-making.
When government is responsive to certain interests because of their political spending it injures the democratic rights of citizens who cannot pony up in a pay-to-play political system.
In his Citizens United opinion Justice Kennedy himself acknowledged, “[I]f elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern.”
Well, we have well passed the time for concern, even by Justice Kennedy’s own formulation.
When government is responsive to certain interests because of their political spending it injures the democratic rights of citizens who cannot pony up in a pay-to-play political system. Happily, millions of Americans are working for change, creating a national democracy movement and proposing innovative structural changes designed to ensure that everybody has an equal say in our democracy. And, one day, we will remember the anniversary of the Citizens United decision as merely a historical curiosity that marked a time when the Court foolishly turned its back on the pro-equality democracy enshrined in the Constitution. This is a fight we must continue to wage and win if we are to preserve our representative democracy from sliding further towards plutocracy.
1. The change in personnel began when John Roberts replaced William Rehnquist as chief justice. Although a staunch conservative, Chief Justice Rehnquist did not believe that a business corporation had a constitutional right to participate in the political sphere as to matters that had no material effects on its commercial activities. See, e.g., First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 822-27 (1978) (Rehnquist, C.J., dissenting). Chief Justice Roberts did not share this view and Justice Kennedy gained the last vote he needed to turn his dissents and concurrences into a majority opinion.
Liz Kennedy and Seth Endo were colleagues at Demos, a non-partisan public policy organization working for an America where we all have an equal say in our democracy and an equal chance in our economy. Elements of this op-ed were adapted from Liz Kennedy & Seth Katsuya Endo, The World According To, and After, McCutcheon v. FEC, and Why it Matters (forthcoming). The viewpoints expressed in this article are the authors’ own and do not necessarily represent those of Demos.