CHAPTER ◆ 4
Campaign Finance
In 1976, the Supreme Court decided a case that was as important to equality in elections as San Antonio Independent School District v. Rodriguez and Milliken v. Bradley were to equality in education. Buckley v. Valeo was a challenge to sweeping campaign finance reforms that Congress enacted in 1974, in response to public outrage over the Watergate scandal. The reforms included strict dollar limits on how much Americans could contribute to political campaigns or spend independently to affect the outcome of an election.
On the day the law took effect, a group led by New York senator James Buckley, brother of the conservative intellectual William F. Buckley, filed suit. The Buckley group argued that contributing to campaigns and spending money on elections were forms of speech and that putting limits on it violated the First Amendment. The Court’s decision would profoundly shape the future of American politics and government. If it upheld the law, the role of money in politics would be sharply limited. If it struck down the law or critical parts of it, the floodgates would open, and wealthy individuals and special interests would have tremendous influence over who won elections and what policies they adopted.
Throughout American history, campaign finance reform has been closely tied to political scandals over money in politics. In the late 1800s, with the rise of the large corporation, special-interest money poured into national politics. It was so influential that it became an object of cynical humor. “There are two things that are important in politics,” Mark Hanna, the legendary Republican political boss, said at the time. “The first is money, and I can’t remember what the second one is.”
When the Progressive movement gained power and Theodore Roosevelt became president, Congress responded to the public’s demands for reform. It passed the Tillman Act of 1907, which banned corporate campaign contributions in national elections. Other laws followed, including the Federal Corrupt Practices Act of 1910 and later amendments, which imposed campaign spending limits and disclosure requirements. Many of the rules were not observed, however, and few violators were prosecuted.
There was a new push for campaign finance regulation in the late 1960s and early 1970s. It was an era in which progressive reform swept across the country, transforming everything from university curriculums to mental hospitals. This reformist spirit reached politics, where it changed how legislative district lines were drawn, how Democratic National Convention delegates were selected, and how campaigns were funded. At the urging of good-government groups, including the newly formed Common Cause, Congress adopted the Federal Election Campaign Act of 1971 (FECA), which created the modern framework for regulating campaign finance, including tougher disclosure requirements. A related law allowed taxpayers to check a box on their tax form to contribute to a fund to provide candidates with public financing. There was no central office charged with enforcing the 1971 law, however, and violators were still rarely prosecuted.
Just a few years after that law was passed, Watergate broke. It was the biggest political scandal in American history, and it prompted the greatest reforms. Although it is best known for the burglary of the Democratic National Committee offices and a cover-up that reached all the way to the Oval Office, Watergate also included major campaign finance crimes. The Committee for the Re-election of the President, which was known by the evocative acronym CREEP, was caught accepting multi-million-dollar contributions from corporations, in violation of the Tillman Act.
Investigators found illegal contributions to CREEP from some of the nation’s largest corporations, including DuPont and American Airlines. Many of them sought specific actions from the White House, including the milk industry, which pledged $2 million to CREEP while it was asking the administration to raise federal milk price supports. The chairman of American Airlines, George Spater, said his company contributed “in fear of what could happen” if it did not. Much of the money was funneled in questionable ways, including cash in bags.
Watergate created a groundswell of support for tougher laws regulating money in politics. The Philadelphia Inquirer spoke for much of the country when it called for a campaign finance law “revolution” to bring an end to “the need for money, in huge quantity, that corrupted the 1972 electoral process beyond the grimmest, most cynical limits of previous imagination.” The general public was also demanding reform. After Watergate, more than 25 percent of all mail sent to members of Congress was about campaign finance regulation, according to one account, “far more than on any other issue.” In a September 1973 Gallup poll, 65 percent of respondents favored public financing of federal campaigns and a total ban on private contributions.
In response to Watergate and the public’s reaction to it, in 1974 Congress enacted a set of amendments to FECA—and these sweeping reforms were the ones challenged in Buckley v. Valeo. The 1974 amendments were the “revolution” The Philadelphia Inquirer and others demanded, strengthening campaign finance regulations in important ways. They established a $1,000 limit on contributions to candidates in federal elections. They also imposed a separate $1,000 limit on independent expenditures “relative to a clearly identified candidate.” This category applied to spending during an election—such as taking out a newspaper advertisement—by anyone who was not part of a campaign and not coordinating with a campaign, that could be seen as promoting a specific candidate. The 1974 amendments also imposed new and more rigorous public disclosure requirements. To ensure that the regulations were actually followed, the new amendments established a Federal Election Commission to enforce the limits, oversee the disclosure, and manage the public financing system.
Buckley’s group of plaintiffs charged that many provisions of the 1974 amendments, and even some parts of the original 1971 law, were unconstitutional. The most important challenges were to the newly established contribution and expenditure limits, which had the potential to greatly reduce the role of money, and particularly special-interest money, in elections. The plaintiffs argued that the restrictions infringed on the First Amendment free speech rights of people who wanted to contribute or spend more than the limits the law allowed.
The plaintiff class included some of the nation’s most conservative elected officials and organizations, starting with Buckley, who had been elected senator from New York on the Conservative Party of New York line, in an electoral fluke, when the Democratic and Republican-Liberal candidates split the liberal vote. He was joined by the American Conservative Union and the Mississippi Republican Party. There were also, however, some prominent liberals and civil libertarians, including Eugene McCarthy, the 1968 anti-war Democratic presidential candidate, and the New York Civil Liberties Union. The liberals and civil libertarians believed that the limits on contributions and expenditures made it difficult for insurgent candidates to challenge entrenched incumbents.
The first court to hear Buckley v. Valeo, the U.S. Court of Appeals for the D.C. Circuit, upheld nearly all of FECA. The D.C. Circuit, which had a majority of judges nominated by Democratic presidents, held that spending money on campaigns was not pure speech. Since it was not, the court said, FECA’s restrictions on campaign contributions and election spending did not violate the First Amendment.
To support its holding about money and speech, the D.C. Circuit drew a comparison to United States v. O’Brien, the Supreme Court’s ruling from 1968 upholding a law that made it a crime to burn a draft card—the same case in which Douglas had been a lonely, and radical, dissenter. In O’Brien, the Supreme Court said that burning a draft card is partly speech and partly not speech. The burning of the card registered opposition to the war and to the draft, which was communication. It also, however, destroyed a military document that the government had reasons for preserving that had nothing to do with speech. The Court said the government had a legitimate interest in regulating that part of the burning of a draft card. In the same way, the D.C. Circuit held, the government had legitimate reasons for regulating money in politics that had nothing to do with suppressing speech.
The D.C. Circuit did something else that was important: it recognized that the government had several distinct interests in regulating money in politics. It was critical, the court said, to safeguard “the integrity of elections.” The government also had an interest, however, in “avoiding the undue influence of wealth” on democracy. The D.C. Circuit expressly cited Harper v. Virginia Board of Elections, the decision striking down the poll tax, and it defended campaign finance regulations as a protection of the rights of non-rich Americans. “It would be strange indeed,” the court said, “if . . . the wealthy few could claim a constitutional guarantee to a stronger political voice than the unwealthy [merely] because they are able to give and spend more money, and because the amounts they give and spend cannot be limited.”
The Supreme Court heard arguments in Buckley v. Valeo on November 10, 1975. Two days later, Douglas, the most liberal justice, announced his retirement. His seat would be filled by President Gerald Ford, who a few years earlier, as House minority leader, had been a key part of Nixon’s campaign to drive Douglas off the Court. Ford was in a weak position politically. His path to the White House had been highly unusual. Nixon appointed Ford vice president after Spiro Agnew resigned in disgrace, following his plea of no contest to a charge of tax evasion. Ford then became president when Nixon was forced to resign over Watergate. Once in office, Ford made the controversial decision to pardon Nixon, which still haunted him. Ford needed to nominate a justice who would be confirmed by a Senate with a large and unfriendly Democratic majority.
His choice was John Paul Stevens, a former antitrust lawyer who was a well-respected, moderate Republican judge on the Chicago-based U.S. Court of Appeals for the Seventh Circuit. As President Ford hoped, Stevens proved to be popular with senators from both parties: he was confirmed by a 98–0 vote. Stevens was sworn in on December 19, which was too late to participate in Buckley v. Valeo.
The ideological makeup of the Court that heard the case was very different from that of the liberal D.C. Circuit. Half of the eight justices were Nixon nominees, and only two had been put on the Court by Democrats. The Court was under pressure to rule quickly, with the 1976 presidential election fast approaching. In less than three months, it reversed the D.C. Circuit and invalidated key parts of FECA.
The Court insisted that spending money on elections is speech. It then established a key constitutional distinction that became the framework for all future campaign finance decisions. The Court upheld FECA’s limits on direct contributions to campaigns, on the theory that financial contributions were not actual speech but rather a way of “associating” with a candidate or a party, making the First Amendment interests less compelling. At the same time, the Court struck down FECA’s limits on independent expenditures, which it held were pure speech that deserved full First Amendment protection.
In its First Amendment analysis, the Court held that the government had only one legitimate interest in regulating campaign finance: limiting corruption or the appearance of corruption. It emphatically rejected the D.C. Circuit’s holding that the government had an interest in leveling the playing field between candidates with more money and ones with less. “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others,” it said, “is wholly foreign to the First Amendment.” By interpreting the government’s interest in campaign finance regulations so narrowly, the Court made it easier to strike down the independent expenditure limits. It simply decided that there was not a great risk of corruption or the appearance of corruption when money does not pass through candidates or their campaigns. Therefore, it insisted, the government had no legitimate interest in preventing people from spending as much money as they wanted to get their preferred candidates elected.
The Court in Buckley upheld many other parts of FECA in addition to the contribution limits, so it almost appeared to be a victory for campaign finance reform. The Court’s invalidation of limits on independent expenditures, however, was an enormous loss. It gave wealthy individuals and special interests a way to inject unlimited amounts of money into political campaigns.
The Buckley decision did not break down neatly on ideological lines. On the whole, the conservative justices were more opposed to the law than the liberal ones. Two of the Nixon nominees, Burger and Blackmun, voted to strike down both the contribution and expenditure limits. The most liberal justices, Brennan and Marshall, joined the majority of the Court in voting to uphold the campaign contribution limits and strike down the expenditure limits—although, according to the justices’ internal notes, they came close to voting to uphold both kinds of limits. In time, a strong ideological division would develop, with liberals generally supporting campaign finance regulations and conservatives largely opposing them. In this first major campaign finance ruling of the modern era, however, it was possible to make out only the vague outlines of the ideological divide that would eventually emerge.
Buckley v. Valeo has been called “the Rosetta Stone of campaign finance jurisprudence.” The pronouncements it laid down, some of which were highly damaging to American democracy, still profoundly shape the law governing money in politics decades later. Buckley’s most harmful holding was its most basic one: that money equals speech. The logic behind it was strained. Spending money is different from speaking in important ways. Money amplifies whatever speech it is put behind and it brings it to a larger audience, but it is not speech itself, any more than using a high-powered sound system to blast a political message on a street corner is speech. The Court’s equation of money and speech was, as one critic has said, the “original sin” of campaign finance law, which was responsible for almost everything bad that followed.
Even if the Court was intent on recognizing money as speech, it should have at least recognized the wisdom of the D.C. Circuit’s more nuanced analysis. Campaign finance regulations do not prevent people from saying whatever they want about politics. At most, they are a restriction on a combination of speech and non-speech elements, like the law against burning a draft card. If the Supreme Court had adopted the D.C. Circuit’s approach, it would have been far easier for the government to defend reasonable campaign finance regulations.
The Buckley Court also reached another very damaging conclusion: its insistence that the government’s only legitimate interest in campaign finance regulations is preventing corruption or the appearance of corruption. The Supreme Court’s rejection of what the D.C. Circuit saw clearly—that the government has an interest in “avoiding the undue influence of wealth” in elections—has been a major obstacle to defending campaign finance laws. One commentator has said that the Court’s dismissal of this interest—its holding that the government cannot “restrict the speech of some elements of our society in order to enhance the relative voice of others”—may be “the single most damaging sentence in the modern canon of constitutional law.”
The Court’s decision to strike down limits on independent expenditures opened the floodgates to vast amounts of money in politics. As long as wealthy people spent their money independently and did not give it to a candidate or a political party, they could use as much as they wanted to get their candidates elected. Francis Valeo, the secretary of the Senate, who was formally the defendant in the case, understood what the Court’s ruling meant. “I knew the minute that they took off the limitations on personal expenditures that you were setting up a Senate of millionaires, or people who could rely on other people’s money for their support,” he said. “I thought that was a disaster in terms of what it would do to the Senate, and it is.”
By opening these floodgates, Buckley did something else very harmful: it eroded the basic principles underlying American democracy. The First Amendment, many constitutional law scholars say, was enacted not merely to prevent government from limiting speech but, more broadly, to promote democratic values, including fair and inclusive political debate. Critics argue that in Buckley the Court instead embraced a form of “free market democracy” in which wealth is given almost completely free rein in elections. Buckley adopted, according to this critique, “an Ayn Rand–style libertarian” approach that treated money as a “placeholder for allocating political power.”
The Buckley Court’s interpretation of the First Amendment made it inevitable that the wealthy would have an outsized, and perhaps controlling, role in elections and in setting government policy. J. Skelly Wright, who was one of the judges in the majority in the D.C. Circuit’s Buckley decision, wrote an article for the Columbia Law Review that looked back mournfully on the Court’s decision to reverse the ruling he had signed on to and strike down the limit on campaign expenditures. In the article, entitled “Money and the Pollution of Politics,” Wright criticized the Court’s ruling as “tragically misguided.” As a result of it, he said, “concentrated wealth” threatened to drown out the voices of individual Americans. If the trend of money in politics that it started continued, Wright warned, “the principle of one person, one vote could become nothing more than a pious fraud.”
Two years later, the Court expanded on its free-market approach to money in politics. In First National Bank of Boston v. Bellotti, it struck down a Massachusetts law that barred corporations from making contributions or independent expenditures in favor of or against state referendums. The vote was 5–4, with Powell, whose memorandum for the Chamber of Commerce had argued that business should do more to influence politics and law, writing for the majority.
The Court did two important—and, for supporters of campaign finance law, troubling—things in Bellotti. It continued its skeptical approach toward campaign finance regulation, showing a clear willingness to strike down laws that reformers had put in place to make elections fairer. At the same time, it began to minimize the distinction between corporations and human speakers under the First Amendment, something it would do in more extreme form decades later, in Citizens United v. Federal Election Commission. “The inherent worth” of speech in “informing the public,” Powell said, does not depend on “the identity of its source, whether corporation . . . or individual.” The Court made clear that it was talking only about corporations speaking on ballot initiatives, and that it was not saying they could spend money to elect candidates for office. That would come later.
The breakdown on the Court was becoming more ideological, with the liberal justices gravitating toward supporting campaign finance regulations. In Bellotti, the Court’s two strongest liberals, Brennan and Marshall, dissented, along with White, who was staking out a position as one of the Court’s strongest defenders of campaign finance regulations. Their dissent, which White wrote, set out a strongly liberal, almost populist, defense of regulating campaign spending by corporations. It was a mistake, White said, to give corporations the same political speech rights as people, given the “special advantages” the state gives them to “amass wealth.” He warned, in a memorable phrase, that the state “need not permit its own creation to consume it.”
Defenders of the Court’s decisions striking down campaign finance regulations argue that the Court is genuinely concerned about protecting free speech, and that its goal is not to expand the role of money in politics or to increase the influence of the wealthy and powerful. That is hard to square, however, with its rulings from the same time in cases involving political speech by poor and middle-class speakers. In those cases, it repeatedly turned away people who were trying to speak not by spending money, but in more traditional, less expensive ways.
In 1981, the Court decided a challenge by citizens’ associations in Westchester County, New York, to a federal law prohibiting people from leaving unstamped material in private mailboxes used by the Postal Service. The Council of Greenburg Civic Associations said that leaving its circulars in letterboxes was one of the group’s main ways of communicating with community members. The Court upheld the law by a 7–2 vote. Rehnquist, writing for the majority, insisted that even though homeowners buy their own mailboxes, once they designate them as a place where U.S. mail is left, no one else has a right to use them. In dissent, Marshall argued that the law was a class-biased restriction on speech. “By traveling door to door to hand-deliver their messages to the homes of community members,” he said, association members “employ the method of written expression most accessible to those who are not powerful, established, or well financed.”
A few years later, the Court upheld a Los Angeles law that barred candidates from posting campaign signs on utility poles and other public property. The six-justice majority conceded that the ban interfered with candidates’ ability to communicate with voters, but it insisted that the posters created “visual clutter” and that the city was within its rights to prevent this “significant substantive evil.” In dissent, Brennan argued that the First Amendment did not permit cutting off such a critical method of political communication simply for aesthetic reasons. Posters on public property were a particularly inexpensive way of communicating, he said, “essential to the poorly financed causes of little people.”
The contrast between the Court’s approach to campaign spending by wealthy individuals and corporations and lower-income people was stark. When the wealthy and powerful wanted to use their money to influence elections, the Court swept aside an elaborate campaign finance regime that had been enacted by Congress and signed by the president, responding to strong popular demand, to help a nation heal after a scandal that went all the way to the White House. When poor and middle-class people challenged bans on their ability to hand out leaflets or post campaign signs, the Court suppressed their speech, out of deference to Postal Service mailbox rules and municipal concerns about clutter. It is hard to avoid the conclusion that the Court had two very different First Amendment standards for political speech, one for the wealthy and powerful and another for the “little people.”
There was a brief period when the Court appeared to be relatively sympathetic to campaign finance laws, and in those years it issued two major rulings upholding regulation on money in politics. In 1990, in Austin v. Michigan Chamber of Commerce, it held that Michigan could prevent corporations from spending money to elect candidates. It was a different issue from Bellotti—this time corporations wanted to support not ballot referendums but individuals running for office. By a 6–3 vote, the Court said Michigan had the right to keep corporate money out of candidate elections. Marshall, writing for the Court, said Michigan’s law was aimed not at ordinary political corruption, but at “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form.” The Court in Austin, speaking through Marshall, sounded a lot like White in his dissent in First National Bank of Boston v. Bellotti and J. Skelly Wright in “Money and the Pollution of Politics.”
In 2002, Congress enacted the Bipartisan Campaign Reform Act, widely known as McCain-Feingold, a major new law designed to close loopholes that had emerged in existing campaign finance law. Like the 1974 amendments to FECA, which were adopted after Watergate, McCain-Feingold was a response to scandal. It was enacted not long after the controversial 2000 presidential election, which was decided by the Court in Bush v. Gore, and the Enron scandal, one of the nation’s highest-profile cases of corporate malfeasance.
McCain-Feingold closed a notorious “soft-money” loophole in the existing law that allowed corporations, unions, and wealthy individuals to contribute unlimited amounts of money to political parties, purportedly for party building, getting out the vote, and other activities not related to electing a specific candidate. The soft-money loophole allowed corporations to pour money into elections, and it let individuals do the same, in larger amounts than they were legally allowed to give to candidates.
McCain-Feingold also cracked down on phony issue ads—television commercials that purported to be about an issue but actually were an attack on or argument for a candidate. These advertisements, which jammed the airwaves in the weeks leading up to elections, used language like “Call Senator Smith and tell him to stop destroying our economy,” with the goal of getting the audience not to call Senator Smith but to vote against him. Corporations were barred from spending money directly to support or oppose candidates, but by running a phony issue ad, they could spend corporate money on elections and technically not violate the law. McCain-Feingold classified phony issue ads as regular campaign commercials and barred corporations from funding them. A group of plaintiffs led by then–Majority Whip Mitch McConnell challenged key parts of the law.
In 2003, in McConnell v. Federal Election Commission, the Court upheld McCain-Feingold. It was a long and fractured decision, with three separate majority opinions, but on the most important points the vote was 5–4, with Sandra Day O’Connor, who was the swing justice at the time, joining the liberal justices to create a majority. The main majority opinion, co-written by O’Connor and Stevens, upheld McCain-Feingold’s closing of the soft-money loophole and its ban on phony issue ads.
The conservative dissenters, in an opinion by Kennedy, objected that the ruling “leaves us less free than before.” They made it clear that they were eager to start striking down campaign finance regulations again if they could find the votes—and they soon would. The majority for upholding McCain-Feingold was possible only because O’Connor joined it. When she retired, President George W. Bush nominated Samuel Alito, who was strongly supported by conservative activists, to succeed her. Alito was more conservative than O’Connor in general, and he was considerably less supportive of campaign finance regulations. Once he arrived, a new reality set in: there were no longer five votes to uphold laws like McCain-Feingold, and the Court would be more divided than ever along ideological lines.
In 2007, in Federal Election Commission v. Wisconsin Right to Life, the Court made its U-turn, reversing a key victory that campaign finance advocates had already won in McConnell v. Federal Election Commission. The Wisconsin Right to Life case was also about phony issue ads, this time ones run by an anti-abortion group against Wisconsin senator Russ Feingold. The Court, by a 5–4 vote, ruled that Wisconsin Right to Life could run the ads. Roberts, writing for the majority, set out a new test for when an ad would be deemed to be a phony issue ad: only when it is “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The new test all but obliterated McCain-Feingold’s effort to rein in these ads. Writing for the four liberal dissenters, Souter said that, “after today, the ban on contributions by corporations” and the “limitation on their corrosive spending when they enter the political arena” were “open to easy circumvention.”
The Court’s new hardline conservative majority made its big move in 2010 in Citizens United v. Federal Election Commission, a case that did not start out big. Citizens United was a small conservative nonprofit organization that produced a ninety-minute documentary attacking Hillary Clinton. Hillary: The Movie was something between a traditional documentary and an hour-and-a-half attack ad, featuring commentators like conservative provocateur Ann Coulter and descriptions of Clinton as “ruthless” and “the closest thing we have in America to a European socialist.” The group made the film using its own money and funds from for-profit corporations, and it planned to distribute it through video-on-demand. It was not clear if Hillary: The Movie, which was far from a typical political advertisement, fell under McCain-Feingold’s restrictions. Citizens United sued the Federal Election Commission to establish that it could air Hillary: The Movie in the run-up to the 2008 election without violating McCain-Feingold. The lawsuit had the potential to chip away further at McCain-Feingold, but the scope of the challenge appeared to be narrow.
The Citizens United lawsuit did not arrive at the Supreme Court by chance. A well-funded network of conservative activists, with strong ties to corporate America, had mobilized against campaign finance regulations. James Bopp, a prominent Republican election lawyer, was one of the leaders. With help from Senator Mitch McConnell, Bopp had established the James Madison Center for Free Speech, which served as a brain trust for campaign finance litigation. Bopp encouraged Citizens United to use Hillary: The Movie to further roll back campaign finance regulation and played a large role in crafting the lawsuit in its early stages. Bopp had ambitious goals. He told The New York Times, “If we do it right, I think we can pretty well dismantle the entire regulatory regime that is called campaign finance law.”
Citizens United v. Federal Election Commission reached the Court for the first time in March 2009. Citizens United hired Ted Olson, one of the nation’s preeminent Republican lawyers, who had argued Bush v. Gore for Bush, to represent it before the Court. Citizens United became more ambitious once the Court agreed to hear its case, and it no longer wanted merely to chip away at McCain-Feingold. Now it wanted to ask the Court to make major changes in campaign finance law. It would be necessary, however, to proceed cautiously. The big issues Citizens United wanted to raise had not been briefed and argued from the start of the case, and the Court generally did not like being told it should overturn decades of its previous holdings. In his briefs to the Court, Olson made the narrow arguments for his client to prevail, but he also went further. He asked it to reverse Austin v. Michigan Chamber of Commerce and hold that corporations like Citizens United had a First Amendment right to spend their money in support of candidates. It was a cursory argument, and few observers thought the Court would take such a radical step.
There were many good reasons for the Court to reject Olson’s plea and issue a narrow ruling. One was that the ban on corporate money in candidate elections was so well established. The Tillman Act, which barred corporations from contributing to political candidates, had been one of the great accomplishments of the Progressive Era, adopted to make politics cleaner and more responsive to the people. A few decades later, Congress extended the ban on corporate contributions to corporate spending on campaigns. The Court ratified the ban in Austin v. Michigan Chamber of Commerce and again in McConnell v. Federal Election Commission. It was a lot of law and history to ask the Court to toss out in such a casual manner.
Another reason for the Court to reject Olson’s argument was the doctrine of “constitutional avoidance,” which held that courts should look for ways to decide cases, if possible, without interpreting the Constitution. With Citizens United’s challenge, it would have been easy for the Court to avoid constitutional issues. It could simply have held that a ninety-minute documentary like Hillary: The Movie did not fall under the definitions set out in McCain-Feingold for a political commercial and issued a ruling that did not significantly change the law.
The conservative justices, however, were eager to use Citizens United to issue a very broad ruling. Kennedy quickly wrote a draft opinion reversing Austin and striking down McCain-Feingold’s limits on corporations spending money on candidate elections. Souter, who would have dissented, reportedly made a personal appeal to Roberts to slow the case down. Deciding such a critical issue so hastily, Souter insisted, with virtually no briefing from the parties, would do lasting damage to the Court. The justices had an intense debate, according to accounts from behind the scenes, and ultimately decided not to rush an outcome they all knew was coming.
The Court set Citizens United down for a second argument in the fall of 2009, and it asked the parties to submit new briefs addressing whether the ban on corporate spending in elections should be struck down. The Court was still rushing—rather than wait for the term to begin, on the first Monday in October, it scheduled a rare September argument. Elena Kagan, as President Obama’s solicitor general, argued for the government. After everything that had occurred, supporters of campaign finance regulations were not optimistic about winning, but they hoped the Court would decide the case on narrow grounds.
That was not what happened. On January 21, 2010, the Court, by a 5–4 vote, issued the sweeping ruling it had been waiting to deliver. It struck down the part of McCain-Feingold that prohibited corporate expenditures on campaigns, reversing Austin and McConnell in the process. It was a stunningly broad decision that opened the floodgates to unlimited amounts of corporate money in elections. As was increasingly becoming the norm in campaign finance cases, the Court broke down precisely into conservative and liberal camps.
Kennedy wrote the majority opinion, and he was in many ways the ideal person to write it. Kennedy had earned a reputation as a relative moderate, because, as the Court’s swing justice, he occasionally broke with his fellow conservatives to give the liberals a majority. In a few areas, including gay rights and the death penalty, the Court had issued important liberal rulings because of his vote. Kennedy was no moderate, however, on business cases. He had strong corporate sympathies that had deep roots.
Kennedy grew up in Sacramento, the son of a lawyer-lobbyist father and a mother who was active in civic affairs. Kennedy, who was raised Catholic and served as an altar boy, attended Stanford, the London School of Economics, and Harvard Law School. He went to work for a leading law firm in San Francisco, but when his father died he returned to Sacramento to take over his father’s law and lobbying practice. Kennedy also helped then-governor Ronald Reagan’s staff with the drafting of a ballot initiative to limit taxes.
Kennedy was nominated to the San Francisco–based U.S. Court of Appeals for the Ninth Circuit by President Ford in 1975, when he was just thirty-eight. As an appeals court judge, Kennedy had a reputation as a low-key but reliable conservative. One of Kennedy’s judicial colleagues described him as having difficulty understanding less fortunate people who faced barriers in life, a product of the exclusive neighborhoods and elite schools in which he spent his formative years. “It’s a different life experience,” the judge told a reporter. “He just doesn’t know any of those people.” Kennedy arrived on the Supreme Court as a third choice. When Lewis Powell retired, in 1987, after the failed nominations of Robert Bork and Douglas Ginsburg, President Reagan turned to Kennedy, who he thought would be an uncontroversial nominee. He was right: the Senate confirmed him by a vote of 97–0.
Kennedy’s opinion in Citizens United elevated corporate speech to a new level—the level of people’s speech. What mattered for the First Amendment, Kennedy said, was not the source of the speech, but its content. “Political speech is indispensable to decision-making in a democracy,” he said, “and this is no less true because the speech comes from a corporation rather than an individual.”
There was a great deal wrong with Citizens United. The majority was reckless, almost lawless, in its rush to overturn well-established law. The conservative justices may have been in a hurry to free up corporations to participate in the 2012 presidential election, or they may have wanted to act while they had five votes for their position—since, with the departure of just one justice, that could have changed. Whatever the reason, the majority’s haste was hard to miss, and criticism of it came from the Court itself. “Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law,” Stevens protested in an unusually sharply written dissent. They “blaze[d] through our precedents, overruling or disavowing” a long line of cases that had come out precisely the opposite way, he said, to get the result they wanted.
The Court’s First Amendment analysis was also deeply flawed. It was wrong to say that corporations are equivalent to people as speakers. Corporations lack the attributes that matter most in expressive communication. They have “no consciences, no beliefs, no feelings, no thoughts, no desires,” Stevens wrote in dissent. Corporate “personhood” can be a useful legal fiction, Stevens said, but corporations “are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”
It was also deeply unfair to treat corporations as persons—unfair to actual people, whose voices were now in danger of being drowned out by the far greater resources of corporations. The law gives corporations enormous advantages in accumulating wealth, something White mentioned in his dissent in First National Bank of Boston v. Bellotti. They pay lower taxes than people, they are able to raise capital through the sale of stock, and the law allows them to “live” forever. Society gives corporations these advantages in the belief that the general public will benefit from their commercial activity, employment, and wealth creation—not to create super-speakers with the power to change the outcome of elections. With the Court’s decision in Citizens United, White’s warning from decades ago was coming to pass: the nation was permitting “its own creation to consume it.”
Few Supreme Court decisions have been more sharply criticized from the moment they appeared than Citizens United. President Obama, who once taught constitutional law at the University of Chicago, issued a statement on the day of the ruling calling it “a green light to a new stampede of special interest money.” It was, he said, “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”
The public shared Obama’s reaction. A Washington Post–ABC News poll found that eight in ten respondents opposed the Citizens United decision, and 65 percent were “strongly” opposed. Unlike the Court, the public was not sharply divided on ideological lines: 85 percent of Democrats, 81 percent of independents, and 76 percent of Republicans disapproved.
Critics were quick to mobilize. MoveOn.org, the grassroots progressive group, organized protests nationwide. Within months, 400,000 people had signed a MoveOn.org petition that called for amending the Constitution to overturn Citizens United. The same call went out from twenty states and about eight hundred cities, towns, and other units of government.
Citizens United was, as one scholar observed, “the end of campaign finance law as we knew it.” Beyond its damaging holding allowing corporations to spend on candidate elections, it opened the door to a new campaign finance scourge: the rise of the “super PAC.” Regular political action committees, or PACs, raise money from individual donors and contribute it to candidates. Campaign finance regulations apply to them: there are limits on the size of the contributions they can accept, and they cannot take money from corporations. There was, however, another kind of PAC, which used its money only for independent expenditures. SpeechNow.org, which was one of these expenditure-only PACs, argued that, because it did not give money to candidates, it should be able to accept contributions of any size, and to take them from corporations. There was strong support for this in Citizens United, since, among its various holdings, it had just stated for the first time that the government had no anti-corruption interest in regulating expenditures. This made no sense: of course a special interest could corruptly influence an elected official by spending a large amount to get him elected, expecting favors in return. This illogical holding was, however, now the law—and it meant there was no legal basis for reining in super PACs like SpeechNow.org.
Within months, SpeechNow.org persuaded the U.S. Court of Appeals for the D.C. Circuit to hold, based on Citizens United, that it could accept contributions of any size. Shortly thereafter, the Federal Election Commission decided, also because of Citizens United, that expenditure-only PACs like SpeechNow.org could accept contributions from corporations. With these two rulings, the super PAC was born—a political action committee that could accept contributions of any size, from individuals or corporations. With their ability to engage in “nearly limitless fundraising,” super PACs quickly became one of the most powerful forces in politics. A Republican campaign finance lawyer declared that the emergence of super PACs was “pretty much the holy grail that people have been looking for.”
As destructive as super PACs were, they were made worse by another fast-growing trend in campaign spending: “dark money,” or money whose source is hidden from the public. Normally, contributions to PACs and super PACs must be disclosed. There is, however, a loophole: wealthy individuals and entities can give money to a nonprofit that turns around and gives it to the super PAC. The super PAC need only disclose the nonprofit from which it accepted money, and the nonprofit does not need to disclose where that money came from originally. Dark money makes up an increasingly large share of all election spending. On the fifth anniversary of Citizens United, President Obama warned in his State of the Union address that the nation was “drowning in dark money for ads that pull us into the gutter.”
The deep unpopularity of Citizens United did not slow the Court down. The following year, it struck down an Arizona law enacted by referendum in response to a major political scandal. The law provided public funding for campaigns and gave additional money to candidates running against high-spending opponents. The Court, by the same 5–4 vote as in Citizens United, held that Arizona’s law violated the speech rights of well-funded candidates because it could make them feel pressure to spend less, so they did not trigger the part of the law that gave more money to their opponents. It did not matter to the Court that the law was funding more speech—and not preventing any. Kagan, in dissent, captured the ruling’s perversity. “Except in a world gone topsy-turvy,” she said, “additional campaign speech and electoral competition is not a First Amendment injury.”
In 2014, the anti-campaign-finance-regulation majority struck again. The Court, by the same ideologically divided 5–4 vote, overturned another part of McCain-Feingold, which limited the total contributions an individual could make in a two-year cycle to candidates, political parties, and PACs. The “aggregate contribution limit” was $123,200 for a two-year election cycle, which Alabama businessman Shaun McCutcheon and the Republican National Committee insisted was too low. Roberts, in the main opinion, said the restrictions did not sufficiently advance the government’s interest in fighting corruption to justify its infringement on speech. Breyer got to the heart of the case in a dissent he delivered from the bench. The Court was raising the overall contribution limit to “infinity,” he said, and he warned that “if the court in Citizens United opened a door, today’s decision may well open a floodgate.”
The Buckley line of cases, capped by Citizens United, has transformed American politics—and government. In the deregulated campaign finance environment the Court created, the wealthiest Americans now play an extraordinarily large role in funding electoral politics. When Politico analyzed money flowing to candidates, parties, PACs, and super PACs in the 2014 campaign cycle, it found that the one hundred largest individual donors gave $323 million—almost as much as the amount that came from the 4.75 million Americans who gave $200 or less. In the 2018 midterm elections, a single donor and his wife gave $113 million. Campaign finance has “reached a tipping point where mega donors completely dominate the landscape,” according to political consultant Mark McKinnon. Candidates are now, he said, “genuflecting before an audience of 100 wealthy individuals to fuel their campaigns.”
As dominant as mega-wealthy individuals have become in funding politics, Citizens United opened the system up to a group of influence seekers with significantly more money at their disposal: corporations. In 2019, the ten wealthiest Americans had a net worth ranging from nearly $51 billion to $131 billion, according to Forbes magazine. That same year, Forbes reported that the ten most valuable American companies had market capitalizations ranging from $343 billion to $961 billion. The impact the largest corporations can have on politics when they choose to spend freely far outstrips the impact the wealthiest individuals can have.
After Citizens United, the “stampede of special interest money” that President Obama warned of began almost immediately. The amount of money raised by outside groups not directly affiliated with a campaign or a party has soared. In the first five years after the ruling, corporations, super PACs, labor unions, and other outside groups spent almost $2 billion on federal elections—about two and a half times what they spent in the eighteen years from 1990 to 2008, according to the Brennan Center for Justice. From the 2008 presidential election, just before Citizens United, to the 2012 election, just after, outside spending almost tripled. There were similar increases in state and local elections.
Since Citizens United, dark money is playing an increasingly important role in elections. Nearly one-third of the almost $2 billion in outside spending since Citizens United, or at least $618 million, has been in the form of dark money. In 2018, according to the Center for Responsive Politics, the majority of outside election spending was either from dark money spenders or groups that accepted dark money.
Even if it were possible to trace all of the money that has poured through the floodgates the Court opened, it would still understate the damage of the campaign finance decisions. The money-saturated political landscape the Court created is one in which wealthy individuals and special interests do not need to spend their money to wield influence. Bob Kerrey, the former Democratic senator from Nebraska, has described the powerful impact that special-interest money can have even when it is not spent. Kerrey said that when he was in Congress, if he was considering trying to reduce carbon in the atmosphere to combat global warming, he knew that Charles and David Koch—the archconservative brothers who were each worth billions of dollars—would spend heavily to defeat him for reelection. If he voted to raise the minimum wage, he said, he knew the Chamber of Commerce would support his opponent. It was all so clear that nothing had to be said and no money had to be spent. “They don’t have to threaten me,” Kerrey said. “I just know they’re going to do it.”
The new campaign finance regime has created some bizarre rituals that reflect who now holds the power. An infamous example played out in Las Vegas in the spring of 2014, when prospective Republican presidential candidates descended for what the press dubbed the “Sheldon primary.” They came to pay homage to casino magnate Sheldon Adelson, who had a net worth of nearly $40 billion. The Atlantic reported on the lengths to which the visitors went to ingratiate themselves with Adelson on issues he cared about, in an article headlined “The Sheldon Adelson Suck-up Fest.” The candidates came to pledge their fealty to Adelson’s favorite causes, including stopping the spread of internet gambling, which competed with his casinos.
The Sheldon primary, for all its eccentricities, reflected a larger reality: the extraordinary lengths to which candidates now go to please wealthy donors. This ingratiation occurs largely out of the sight of ordinary voters, most of whom would be shocked by it. In 2016, 60 Minutes investigated fundraising by members of Congress after Citizens United and found that both political parties expected their members to spend up to thirty hours a week in secretive call centers on Capitol Hill soliciting potential donors, working from a prepared script. Representative David Jolly, a Florida Republican, said his party’s leadership told him he was responsible for raising $18,000 a day. Jolly considered the Republican call center to be a “cult-like boiler room” and said the whole process was “beneath the dignity of the office.”
In the 60 Minutes report, which was titled “Are Members of Congress Becoming Telemarketers?,” Congress members made it clear that the Court’s campaign finance rulings were a major reason for their constant fundraising. Representative Steve Israel, a New York Democrat who was then head of the Democratic Congressional Campaign Committee (DCCC), said “everything changed” after Citizens United. Before the ruling, he said, he had to put in an hour every day fundraising, or two at most; after the decision, he had to spend as much as four hours. The schedule the DCCC prepared for freshman members in 2013 recommended that they spend four hours a day making fundraising calls, and just two hours a day doing congressional “committee” and “floor” work. Another member of Congress 60 Minutes spoke to, Rick Nolan, a Minnesota Democrat, served for six years before Citizens United and returned in 2013, after it had been handed down. “It seems like I took a nap,” Nolan said, “and I came back and I say, ‘Wow, what happened to this place? What’s happened to democracy?’”
The intense pressure to make fundraising calls ensures that members of Congress are in constant contact with wealthy Americans, talking with them about their legislative priorities. Big contributors are hardly representative of the American public as a whole. In the 2018 election cycle, the top ten interest groups among contributors to congressional campaigns included real estate, securities/investment, health professionals, lawyers, pharmaceuticals, and oil and gas. Minimum-wage employees and the unemployed were not on the list.
Not surprisingly, in a system where large campaign contributions play such a central role, wealthy people have a disproportionate impact on government policy. In an oft-cited study, Martin Gilens of Princeton University and Benjamin Page of Northwestern University examined a data set on 1,779 policy issues to answer the question “Who really rules?” Their answer was economic elites, including large campaign donors. “In the United States, our findings indicate, the majority does not rule—at least not in the causal sense of actually determining policy outcomes,” the authors concluded. “When a majority of citizens disagrees with economic elites or with organized interests, they generally lose.”
Elites get their way on many important issues through their campaign contributions. A classic example is the “carried interest” loophole, which allows wealthy hedge fund managers and private equity executives to pay a little more than half the tax rate on their compensation that average Americans pay on their salaries. The carried-interest rule makes no sense as a matter of tax policy, but a very wealthy group of Americans wants it very much, and they make large contributions to the elected officials who keep it in place. Even President Trump has said that, as a result of the rule, “the hedge fund guys are getting away with murder.”
The carried-interest loophole increases the nation’s inequality in two ways. It makes some of the nation’s wealthiest people even wealthier, by allowing them to pay less in taxes than they should. No less important, it deprives the government of revenue that could be used to help the poorest Americans. Victor Fleischer, a tax expert at the University of California–Irvine Law School, estimated a few years ago that the carried-interest loophole costs the U.S. Treasury $18 billion a year. There are many ways that money could have been used instead of giving it to hedge fund and private equity executives. The Legal Services Corporation, the badly underfunded federal nonprofit corporation that provides civil legal assistance to low-income Americans who face eviction, the loss of child custody, and other life-altering legal challenges, had a budget of just $410 million in 2018.
Reformers have tried to end the carried-interest loophole, but the resistance has been fierce. During one campaign to abolish it, Stephen Schwarzman, the chairman and CEO of the Blackstone Group, made headlines when he compared the effort to “when Hitler invaded Poland in 1939.” The private equity industry has had an impressive record of success in defending its privileged position. One of the biggest battles was in 2007, when Representative Sander Levin, a Michigan Democrat, introduced a bill to close the loophole. In an analysis of its defeat, The New Yorker recounted how the private equity industry began with strong support from Republicans and worked to win over Democrats. The industry trade association, the Private Equity Council, and twenty lobbying firms did much of the persuading. The bill died quietly in the Senate Finance Committee.
The campaign against the Levin bill was not decided by compelling policy arguments. It was won by campaign contributions. The industry gave more than $22 million in the 2008 election cycle and nearly three times that amount in 2012. The Center for Responsive Politics, a nonprofit organization that tracks campaign contributions, noted that the industry “didn’t emerge as a significant political player or campaign contributor until 2007,” the year the Levin bill was defeated.
There are many other government policies that have been driven by special-interest money. The Medicare prescription drug benefit that Congress adopted in 2003 is one of them. Medicare Part D, as it is known, was widely recognized as a giveaway to the pharmaceutical industry, inflating drug company profits while increasing costs for consumers and taxpayers. Mother Jones ran an exposé of it under the blunt headline “This Is Why Your Drug Prescriptions Cost So Damn Much.”
Part D barred the government from negotiating with pharmaceutical companies for lower drug prices. A study released by Carleton University’s School of Public Policy and Administration and Public Citizen compared Part D with programs that were allowed to negotiate. It found that Part D paid an average of 73 percent more than Medicaid and 80 percent more than the Veterans Benefits Administration for brand-name drugs. It calculated that if Part D could obtain the same prices those programs do, it would save as much as $16 billion a year.
This windfall for the pharmaceutical industry has meant higher premiums and co-payments for senior citizens. The cost, however, goes beyond dollars and cents. Studies show that many Part D participants do not fill all of their prescriptions because they cannot afford to, a practice known as cost-related non-adherence (CRNA). One survey found that 16 percent of diabetes patients covered by Part D declined to fill at least one prescription every year for financial reasons.
Members of Congress have tried to lift the ban on negotiating drug prices, but the pharmaceutical industry has successfully defended its special treatment, with the help of large campaign contributions. From 2003 to 2016, drug manufacturers and wholesalers gave $147.5 million in federal contributions to presidential and congressional candidates, party committees, and political advocacy groups. In 2015, the pharmaceutical industry employed a staggering 894 lobbyists to promote its agenda with the 535 members of Congress, and more than 60 percent of these lobbyists were former members of Congress, congressional staff, or government officials.
The single biggest recent example of a government policy that favored big donors over the public good was a windfall not for one industry but for all of them: President Trump’s 2017 tax law. The Tax Cuts and Jobs Act of 2017, which was projected to add more than $1 trillion to the deficit, sharply reduced taxes for the wealthy while giving the middle class and the poor far smaller cuts. According to an analysis by the Tax Policy Center, nearly 83 percent of the cuts will go to the wealthiest 1 percent.
Corporations, which were given both lower rates and new tax shelters, were the biggest winners of all. A Bloomberg analysis of the law, when it was passed, ran under the headline “Tax Bill Will Deliver a Corporate Earnings Gusher.” After it operated for a year, the windfall for corporations was even bigger than many critics had feared. In 2018, sixty profitable Fortune 500 companies paid no taxes at all, including General Motors, IBM, and Netflix. A number of the nation’s wealthiest corporations reported negative taxation. IBM earned $500 million in U.S. income and received a federal income tax rebate of $342 million. General Motors had $4.3 billion in income and reported a negative tax rate.
There is no way to calculate all the campaign contributions that went to members of Congress and President Trump to promote the tax bill, because it was a priority for so many wealthy individuals and corporations that gave money in the year it passed. Enormous lobbying resources were also deployed to rewrite the tax law in favor of wealthy individuals and corporations. Of the 11,078 lobbyists registered in Washington the year the bill was passed, about 58 percent were working on tax policy, and in the first nine months of that year, those lobbyists contributed $9.6 million to members of Congress.
Little effort was made to hide the role campaign contributions played in rewriting the tax law to favor the wealthy. Doug Deason, a wealthy Texan, was quoted telling congressional Republicans that the “Dallas piggy bank” would be closed until the tax bill was passed. “Get it done,” he said, “and we’ll open it back up.” Members of Congress spoke bluntly about what donors expected. Representative Chris Collins, Republican of New York, said, “My donors are basically saying, ‘Get it done or don’t ever call me again.’” Senator Lindsey Graham, Republican of South Carolina, warned his colleagues that if Republicans did not get the tax bill passed, “the financial contributions will stop” and many incumbents would likely lose their seats.
The influence of campaign contributions was particularly noticeable because the 2017 tax law was so unpopular with voters. There was, not surprisingly, little support among the general public for slashing taxes on wealthy individuals and corporations. A CNN poll found that 55 percent of Americans opposed the law and only 33 percent supported it. Fully 66 percent said they believed it would do more to help the wealthy than the middle class. The high levels of opposition to the bill were widely publicized before Congress voted, but they did not slow its momentum.
Wealthy contributors upheld their side of the bargain. After the new tax law was signed, Politico proclaimed in a headline, “Big Donors Ready to Reward Republicans for Tax Cuts: The Checkbooks Are Open Again, Just in Time for a Challenging Midterm Election Cycle.” Within months, Adelson’s company, Las Vegas Sands, reported a $670 million income tax benefit from the new tax law. The month after that, Republican House Speaker Paul Ryan visited Las Vegas and Adelson gave $30 million to a super PAC working to maintain the Republican House majority. The Charles and David Koch brothers or Koch Industries stood to save as much as $1.4 billion a year in taxes as a result of the new law, according to an analysis by Americans for Tax Fairness. The month after President Trump signed the law, a network of groups affiliated with the Koch brothers said that it would spend as much as $400 million to support conservative candidates and causes in the 2018 midterm elections.
In the years since the Buckley decision, it is striking how successful wealthy individuals have been in getting their taxes lowered. Americans have made it clear that they want higher taxes on the wealthy in poll after poll. In a 2017 Reuters/Ipsos poll, released while Congress was debating the new tax law, three-quarters of respondents said the rich should pay more. Congress, however, has lowered the highest marginal tax rate from 70 percent in 1976, when Buckley was decided, to just 37 percent in 2018. With the role that large campaign contributions and independent expenditures play in politics and government, popular opinion has exerted little impact on tax policy.
Economists and political scientists say that in the world created by Buckley and Citizens United, there is a “feedback loop” at work between wealth and political power. Rich individuals and corporations are more able than ever to use their money to elect candidates and drive government policies that make them even richer. The wealthier they become, the more favorable policies they can buy. “The result,” says Nobel Prize–winning economist Paul Krugman, “is a sort of spiral, a vicious circle of oligarchy.”
The government policies the wealthy are demanding and getting are not merely ones that bring them a small incremental advantage: they are major structural changes in how income and wealth are allocated in society. The same World Inequality Report 2018, co-produced by Thomas Piketty, that cited “massive educational inequalities” as one of the two primary causes of the United States’ “income-inequality trajectory” found that “a tax system that grew less progressive” was the other. Progressive tax systems, which have higher tax rates for the wealthiest taxpayers, are “a proven tool to combat rising income and wealth inequality,” the report said. In the last five decades, American taxes have become far less progressive, helping the wealthiest individuals and corporations become wealthier.
Taxes are far from the only policy area in which wealthy individuals and corporations are winning victories that are increasing economic inequality on a large scale. Economic elites have secured labor laws that are tilted toward management and against unions, which has driven down workers’ wages. The political influence of the wealthy, particularly large corporations, is the main reason the federal minimum wage has not increased since 2009, which has significantly driven down the inflation-adjusted wages of low-income workers. The influence of economic elites was also a major factor in the elimination of the right to welfare in the mid-1990s, which has greatly diminished the incomes of already poor Americans.
The Buckley line of cases has had another important negative effect: it has helped to erode Americans’ faith in their democracy. The campaign finance laws the Court has been rapidly dismantling, in rulings sharply divided along ideological lines, are extremely popular with the general public. In a Pew Research Center poll taken in 2018, 77 percent of the respondents said there should be limits on the amount individuals and organizations can spend on political campaigns. Support for limits crossed party lines, with 85 percent of Democrats and Democratic leaners and 71 percent of Republicans and Republican leaners in favor.
The post–Citizens United regime has left Americans disillusioned. For decades, public opinion polls have asked people whether they believe the government is run “for the benefit of all the people” or “by a few big interests looking out for themselves.” In 1964, 64 percent of respondents said “for the benefit of all,” and just 29 percent said “by a few big interests.” By 2016, only 7 percent said “for the benefit of all,” and 92 percent said “by a few big interests.”
This near-unanimous belief that the government is benefiting only special interests is likely part of the explanation for the electorate’s current level of anger. The 2016 election, in which a socialist nearly won the Democratic nomination and a right-wing populist was elected president, was widely hailed as the year of the angry voter. A report on “Voter Anger with Government and the 2016 Election,” from the University of Maryland School of Public Policy, argued that the “most fundamental source of anger and dissatisfaction” was that the government was “seen as ignoring the people in favor of special interests, campaign donors, and political parties.” Fully 91 percent of those surveyed for the report agreed with the statement “Big campaign donors have too much influence,” with 23 percent somewhat agreeing and 68 percent strongly agreeing.
It did not have to be this way, and the Supreme Court is the main reason it is. After Watergate, the political system responded remarkably well. Congress passed a strong campaign finance law that imposed strict limits on campaign contributions and expenditures, designed to keep special-interest money out of elections. The president signed it, and the U.S. Court of Appeals for the D.C. Circuit upheld it. Then the Supreme Court, which had four justices nominated by Nixon—who had been forced from office by the scandal that led to the law—dismantled the protections Congress put in place. It has been opening the floodgates wider ever since.