Michael Hiltzik

Five years after Citizens United ruling, big money reigns

By taking reins off big-money donations, Citizens United broadens political influence of wealthy and powerful

If you're wondering why issues favored by a majority of Americans such as raising the minimum wage, gun control and net neutrality get scarcely any attention in the halls of Congress, the Citizens United case is the reason.

The Supreme Court's 2010 decision in the infamous campaign finance case marked its fifth anniversary last week. By taking the reins off big-money electoral donations by corporations and labor unions, Citizens United has unmistakably broadened the political influence of the wealthy and powerful.

But the ruling's pernicious effect goes well beyond merely inviting more money into politics. It has opened the way to a debasement of our politics by narrowing the definition of political corruption that can be fought by campaign finance limits.

Justice Ruth Bader Ginsburg last year termed Citizens United the worst of the current court's rulings. "The notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be," she told Jeffrey Rosen of the New Republic.

This is an even more frightening prospect — as the voices of the powerful (and rich) overwhelm those of average Americans.

The sheer torrent of dollars shouldn't be overlooked, however. Outside spending of the sort facilitated by Citizens United — money spent not by the candidates themselves, but formally unaffiliated groups — has "exploded" during the three federal election cycles since the ruling, according to an analysis by the Brennan Center at New York University.

On Senate elections alone, outside spending more than doubled from 2010 through 2014, to $486 million. In some competitive races, outside expenditures accounted for as much as two-thirds of the total. Small donors don't play a role: In most cases, fewer than 1% of all contributions are $200 or less. The average contributions are in the tens or hundreds of thousands of dollars.

The most shocking finding is that spending by so-called Super PACs — organizations whose contribution limits have been eviscerated by Supreme Court rulings — has reached $1 billion since Citizens United. Worse, more than $600 million of that total has come from just 195 donors and their spouses. That's why Georgetown University law professor David Cole recently labeled Citizens United the Supreme Court's "billion-dollar mistake."

"Those 195 individuals have only one vote each," he wrote, "but does anyone believe that their combined expenditure of over $600 million does not give them disproportionate influence on the politicians they have supported?... This is a game played by, and for, the wealthy."

But what is the game, exactly? It's one whose rules have been radically changed by Citizens United and other campaign finance rulings by the Supreme Court. Most recently, in the 2014 McCutcheon ruling, the court overturned individual limits on donors contributing to more than one candidate, party or political action committee.

In Citizens United and the subsequent rulings, conservative and liberal justices alike acknowledged that Congress can restrict political contributions, even if they're considered free speech, to uphold the overarching national interest of a politics free of corruption. But that requires defining "corruption." In these rulings the Supreme Court's conservative majority defined it narrowly as only the "quid pro quo" of payment for a specific action by an elected official — basically, bribery. Contributions to party committees or PACs? They don't count, so they can't be limited.

The liberal justices advocate a broader definition of corruption encompassing not merely bribery, but drowning out the voices of the unmoneyed masses. "Where enough money calls the tune," Justice Stephen Breyer wrote in his McCutcheon dissent, "the general public will not be heard."

This broader view matches Americans' traditional view of corruption. History points unmistakably to the public's hostility to this form of influence. In the 1874 case of Trist vs. Childs, the Supreme Court refused to enforce a contract made by a lawyer hired to collect a debt Congress owed to his client (for a 25% contingency fee). The arrangement contravened public policy, wrote Justice Noah Haynes Swayne, a Lincoln appointee. Swayne looked ahead with a shudder to the prospect of businesses engaging in the same behavior.

"If any of the great corporations of the country were to hire adventurers who make market of themselves in this way [for] the promotion of their private interests," he wrote, "the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption.... If the instances were numerous, open, and tolerated, they would be regarded as measuring the decay of the public morals and the degeneracy of the times.... To legalize the traffic of such service would open a door at which fraud and falsehood would not fail to enter."

Prophetic words. As Georgetown's Cole observes, trafficking in influence today is embedded in the career arc of elected officials: "fully half of all members of Congress become lobbyists upon leaving office."

In the wake of Citizens United, the voice of the ordinary citizen has all but disappeared from Capitol Hill. It doesn't matter whether the donors are Democrats or Republicans; money becomes a political interest on its own. Nor is it a virtue of Citizens United that it took contribution limits off corporations and labor unions alike; U.S. corporations are richer than ever, and labor unions in a long decline.

Legislation plainly in the public interest, whether about equal pay or environmental protection or educational and economic opportunity, is routinely dismissed because those measures will be opposed by corporate interests or plutocrats. That's why Republican Senate and House leaders laughed off President Obama's proposals in his State of the Union address for tax hikes on the 1%, free public higher education, even infrastructure spending.

A new study by the public policy think tank Demos and the public interest group U.S. PIRG calculates that U.S. Senate candidates will have to raise an average $3,300 every day for six years to match the campaign chests of the median 2014 winner. As an unsuccessful challenger for a New York congressional seat told the authors, "You find out very quickly that this is not about who has the best ideas; this is about who has the most money."

As we enter Year Six of the post-Citizens United world, money has the only voice that politicians hear.

Michael Hiltzik's column appears Sundays and Wednesdays. Read his blog, the Economy Hub, at latimes.com/business/hiltzik, reach him at mhiltzik@latimes.com, check out facebook.com/hiltzik and follow @hiltzikm on Twitter.

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