Over the past decade, the economics of elections have been dramatically altered by the effects of the U.S. Supreme Court’s landmark decision in Citizens United v. Federal Election Commission (2010). That decision abrogated the longstanding federal prohibition on corporate electoral spending and eventually led to the widespread proliferation of “super PACs”—political action committees that can raise and spend unlimited amounts of money, including funds from corporations, labor unions, and wealthy individuals, so long as they do not coordinate with a candidate’s campaign. Consequently, the overall amount of money being spent on our elections has increased exponentially, and wealthy special interests have spent astonishing sums, through super PACs, supporting their preferred candidates for public office.
The advent of super PACs has altered the basic calculus of voters’ ability to meaningfully participate in the democratic process. For decades, candidates were limited in the amount they could receive from any particular donor—a limit that still applies to candidates’ campaigns—requiring candidates to cast a wide net to find more financial support for their candidacy. No longer. Super PACs have created a superstructure that completely overshadows campaign fundraising, in which a wealthy donor can provide as much money as they want to super PACs backing the candidate who best advances their private interests. As a result, a well-connected candidate with a few deep-pocketed benefactors can effectively compete and defeat a candidate with a much broader network of donors who contribute no more than the individual maximum—currently $2,900 per election—to directly support the candidate’s campaign. In the arms race of political fundraising, super PACs are nuclear weapons; candidates who lack them are at a fundamental, and typically insurmountable, disadvantage.
The imbalance between super PACs and campaign committees dramatically reduces the average voter’s ability to meaningfully influence elections and raises obvious corruption concerns. Because wealthy donors can contribute unlimited amounts to super PACs supporting their chosen candidates, their voice in the political debate is as loud as their pocketbook allows. That support, in turn, never goes unnoticed by the candidates whose political prospects are buoyed by wealthy donors’ largesse. In the post-Citizens United era, it has never been easier for a billionaire to dominate political dialogue and drown out the voices and concerns of everyday voters. Thus, super PACs provide the drumbeat for our nation’s collective march toward plutocracy.
Compounding the problem is the fact that, often, the public is denied basic information about who is truly financing super PACs. One of the lesser known corollaries of Citizens United was the Supreme Court’s emphatic reliance on public disclosure as a vital tool to provide voters with the information necessary to evaluate the content and sources of corporate political speech. As Justice Anthony Kennedy explained, in a section of the Court’s opinion joined by eight of the nine justices: “[D]isclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
Yet, in the 12 years since Citizens United, disclosure has been consistently undermined by torrents of “dark money” flowing to super PACs. “Dark money” refers generally to political spending by a concealed or unknown source, and, as the phrase itself suggests, it is anathema to Justice Louis Brandeis’s well-known maxim that sunlight is the best disinfectant for combating corruption. When a super PAC’s financial contributors are cloaked in darkness, voters bombarded by the super PAC’s political ads are denied information essential to weigh those ads in context and consider whether the speaker’s interests align with their own. In this way, wealthy donors may gain influence with candidates in exchange for their surreptitious support while the candidates avoid the potential political consequences of cashing in on that support, creating the ideal conditions for corruption to flourish. In the most egregious cases, dark money flowing to super PACs has even been found to have originated from foreign nationals and federal contractors, both of which are categorically forbidden from making political contributions.
Although super PACs are legally required to disclose their donors, wealthy contributors often conceal their identity by funneling super PAC contributions through an intermediary—most commonly a nonprofit or LLC with an anodyne name that isn’t required to disclose its donors. With the contribution structured this way, the intermediary entity’s name is publicly disclosed on the super PAC’s campaign finance disclosure reports, while the wealthy individual’s identity remains secret. Using intermediaries to conceal contributor identities is illegal, but wealthy individuals nevertheless began making dark money contributions to super PACs almost immediately after Citizens United. The practice continues today, and few of the wealthy individuals who have financed super PACs with dark money have ever been identified—let alone investigated, fined, or prosecuted. Most of the dark money flowing to super PACs goes undetected, resulting in millions of dollars in opaque electoral spending exerting an invisible gravitational pull on our elections toward wealthy donors’ favored candidates.