If one is concerned by the role of money in politics, you have to be concerned by the election law rules even before you consider the reckless insouciance of the Citizens United case and the cases that have followed in its wake. Federal law permits an individual to give $2,500 to a federal election candidate up to a biennial limit of $46,200 to all candidates. It further permits the same individual to give $30,800 to a national party committee and $10,000 to state, district, or local party committees each calendar year. And with some limitations, it further permits the individual to give political committees $5,000 and $69, 900 to such committees biennially. Overall, an individual can give $117,000 to federal election campaigns over a two year cycle.
In a sense Citizens United just threw gasoline on a fire. It had already opened a loophole allowing individuals and corporations to spend unlimited sums of money with the intent and effect of influencing federal election campaigns just so long as the advertisements produced by these expenditures did not explicitly advocate the election or defeat of a candidate. Citizens United took the additional step of allowing individuals and corporations to explicitly advocate the election or defeat of candidates without having expenditures being limited by the act. I think the symbolic importance of making it clear to the public that massive corporate infusions of money were compatible with the Court’s twisted conception of democracy was even more important than its legal significance.
More important than Citizens United as a practical matter is SpeechNow.Org v. FEC, a case decided in the District of Columbia Circuit Court of Appeals. SpeechNow is a non-profit organization dedicated to making expenditures on behalf of candidates, but it does not coordinate their expenditures with candidate campaigns and does not make direct contributions to such campaigns. Federal law requires that any such organization that receives more than $1,000 a year in contributions or spends more than $1,000 must register as a political committee with the FEC. Registration triggers some accounting and disclosure requirements and the D.C. Circuit upheld these. But the law also imposes the contribution limits of $5,000 to any single committee and the aggregate biennial limit of $69,900 to many such committees. The D.C. Circuit said that the only interest that could justify these limits would be an anti-corruption interest and that the Citizens United case had determined that independent expenditures did not present a danger of corruption or apparent corruption (an act of wilful blindness - if you ask me). Accordingly individuals and corporations can give unlimited sums to what are called “Super PACS” as a result of the decision. So contribution limits still apply to direct contributions to candidates and political committees that give direct contributions to candidates (ordinary PACS), but not to those political committees that independently advocate on behalf of candidates.
Although the perception is that corporations dominate Super PACS, this is not true. Most of the money for Super PACS comes from wealthy individuals, who, of course, have corporate business interests. See here and here. This is not to say that corporations do not play a major and disproportionate role in American politics. They do. It is to say that even if Citizens United can be overturned, there will be much more work to do before we have eliminated the corrupting influence of money in politics.
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