ASSUMPTIONS/

ASSERTIONS

[I]ndependent
expenditures
(made by
individuals)...
do not give rise
to corruption or
the appearance of
corruption.
- Justice Kennedy writing
for majority, Citizens
United, 558 U.S. 310,
357.

POST-DECISION RECORD

Since Citizens United gave the green light to unlimited independent expenditures, there is substantial
evidence that such expenditures can lead to corruption, even under the narrowest definitions of the
word corrupt.
Numerous news reports since Citizens United have documented how nominally independent
spending has been used to unduly influence or even strike bargains with candidates. For instance,
A Utah legislative investigation found that payday loan companies funded about $450,000 in
nominally independent ads supporting John Swallow for state attorney general in 2012 secretly
coordinated with his campaign in exchange for his promise to shield them from consumer
protection laws. With voters unaware of this, Mr. Swallow won; he resigned after less than a year
in office.
Alabama Governor Don Siegelman was convicted of bribery in 2012 when he gave a government
appointment to a major donor to an independent group that spent in favor of his lottery initiative.
Members of Congress have themselves explained the power of independent spending to influence
their legislative decisions. In interviews, members have said that outside spenders have unhealthy
expectations of the elected officials they assist and that there was no question that Members
have corollary expectations that certain groups will come in and spend independently either for or
againstthem.
Using grand jury and jury trial simulations, a 2016 study by political scientists from the University
of Arizona found that independent spending can give rise to an appearance of corruption to the
ordinary citizen even under the narrow quid pro quo standard, sufficient to persuade jurors to
endorse prosecution for criminal corruption of an elected official who benefited from independent
donations.

[I]ndependent
expenditures...
made by
corporations, do
not give rise to
corruption or the
appearance of
corruption.
- Justice Kennedy writing
for majority, Citizens
United, 558 U.S. 310,
357.

By definition,
an independent
expenditure is
political speech
presented to the
electorate that is
not coordinated
with a candidate.
- Justice Kennedy writing
for majority, Citizens
United, 558 U.S. 310,
360.

There is significant evidence that corporations use independent expenditures in ways that can lead to
corruption:
A 2016 study by Stanford and University of Wisconsin political scientists found that there is
evidence that corporations and business PACs use donations to acquire immediate access and
favor, based on PAC donation behavior and Congressional committee membership patterns from
1980-2012.
A 2014 study by professors at the University of Arizona, Arizona State University and the
University of Utah found that firms who consistently give to politicians, including through PACs,
are likelier to pay lower tax rates, based on 1994-2010 data on PAC contributions, lobbying
expenditures, and the annual accounting statements for firms.

Despite the assertion by the Supreme Court that independent expenditure groups could not
coordinate with candidates and therefore would not pose a corruption threat, the post-Citizens
United era has seen rampant collaboration between candidates and outside (i.e. non-candidate, nonparty) groups that can now take unlimited contributions, undermining longstanding and important
anticorruption measures.
Outside groups, which receive and spend hundreds of millions of dollars in excess of what
any single candidate could directly receive, have frequently worked hand in glove with those
candidates to [skirt limits]:
For example, in 2014 Wisconsin Sen. Mike Ellis was caught on hidden-camera footage
discussing how to create and raise money for a super PAC that would launch seemingly
independent attack ads against his opponent.
Similarly in Florida, Governor Rick Scott appeared in multiple television ads paid for by
the organization Lets Get to Work, an outside group whose name was also a Scott 2014 reelection campaign slogan. The state caps direct contributions to candidates at $3,000, but
Lets Get to Work raised more than $28 million for Scott.
Independent Super PACs and nonprofits that are run by former top staff of party committees or
party leaders, and mimic party spending strategy dubbed shadow parties are proliferating.
In 2016, the Republicans Senate Leadership Fund spent $114 million and the Democrats Senate
Majority Fund spent $75 million. Each group was run by former top aides of party leaders in the
Senate.
In 2016, more than 40 percent of super PAC spending, or $486 million, came from candidatespecific super PACs, which are typically run by the candidates former staffers. This represents a
large increase since 2012, when buddy PACs spent $288 million, although their percentage of
super PAC spending was similar in that cycle, at 45 percent.
Candidates routinely attend fundraisers organized by their buddy PACs so called
independent groups that can take unlimited contributions and are often established, funded,
and/or run by a candidates former staff, consultants, other close associates, or even family.
Even when there are rules on the books, they go almost completely unenforced. Every year the
Federal Election Commission receives scores of complaints, but since 1999 it has conducted only
three investigations, two of which resulted in fines totaling less than $30,000.

The appearance of
influence or access,
furthermore,
will not cause
the electorate to
lose faith in our
democracy.
- Justice Kennedy writing
for majority, Citizens
United, 558 U.S. 310,
360.

The public reaction since Citizens United demonstrates how wrong this prediction was. Big money in
elections has disenchanted the ordinary citizen, with potentially ruinous consequences for democratic
participation:
A 2015 national poll conducted by the New York Times and CBS found that regardless of political
beliefs, 84 percent of Americans thought that money played too much of a role in political
campaigns. 77 percent believed there should be limits on spending by individuals. This echoes a
2015 poll by the Pew Research Center finding that 74 percent of Americans believe elected officials
dont care what people like me think because they put their own interests first.
In a 2015 study, economists from the University of Alberta and Emory University concluded that
Citizens United discouraged ordinary people from making monetary contributions to candidates
campaigns, by analyzing data from more than 38,000 state legislative races between 2000 and
2012.
In 2015, legal scholars and political scientists from the University of Southern California and
the University of Michigan designed a series of surveys to test the extent to which contribution
amounts and coordination between candidates and spenders impact citizens faith in democracy,
finding that it does not take a bribe to corrode [peoples] faith in the democratic process.