The Citizens United decision also paved the way for the creation of so-called “dark money” groups.
As tax-advantaged “social welfare” organizations or business leagues, these nonprofits can function the same way as super PACs do as long as election activity is not their primary activity.
Deciding whether these groups are really primarily about promoting social welfare, rather than politics, has been the source of considerable controversy.
This distinction is important — unlike super PACs, these “social welfare” groups do not have to report who funds them, allowing donors to avoid publicity. And both the Internal Revenue Service and Federal Election Commission, which have some jurisdiction over politically active nonprofits, have all but declined to pursue groups that might be playing politics too much.
What does it all mean for our political system?
“We now live in a world with unlimited money,” laments Paul S. Ryan, deputy executive director and attorney with the Campaign Legal Center, which is working to undo the effects of the decision. “And we do have corruption, and we don’t have disclosure.”
Amending the Constitution
Don’t look for much change anytime soon. Passing a constitutional amendment is a daunting assignment. A two-thirds vote of approval would be required in both the U.S. House and U.S. Senate, which often can’t achieve simple majorities on seemingly perfunctory matters. And then, three-fourths (38) of the nation’s states would have to ratify an amendment.
The last time this occurred it took 203 years. The 27th Amendment, which was introduced in 1789, wasn't approved until 1992. It prohibits raises for members of Congress from going into effect until the start of the next term.
The alternative would be a constitutional convention, which is even less likely. Two-thirds of the states would have to demand it. It's happened exactly once in U.S. history — and that was the first one that created the Constitution.
Despite the high bar, Scott Swenson, spokesman for good government group Common Cause, says it could happen.
“It is the one thing that Americans agree on left, right and center,” he said. “That this is one of the worst Supreme Court decisions in history and it will be overturned. What we need is a Congress that will send it to the states.”
Ryan, however, is skeptical.
“We’re not advocates of the amendment approach for a number of reasons,” he said.
In addition to the political challenges, there’s the wording of the amendment itself. The concern is that it would be too strongly worded or not strongly worded enough.
To date, the proposed “Democracy for All Amendment” achieved the most support among anti-Citizens United amendment proposals.
The joint resolution would give state and federal government the power to “regulate and set limits on the raising and spending of money by candidates and others to influence elections.” It also would empower the government to prohibit corporations “or other artificial entities created by law” from spending money to influence elections.
It received 54 votes in the Senate in 2014, but needed 60 to move forward.
“It’s really tough to draft,” Ryan said of an amendment. “The purpose, in effect, is to regulate and restrict private behavior. That’s only happened once, with the Prohibition amendment. You know how that worked out.”
But there are those who say an amendment is the better way to go, like Jeff Clements, author of “Corporations are Not People: Reclaiming Democracy from Big Money and Global Corporations.”
“Constitutional amendments — not new Supreme Court justices — ended slavery, guaranteed equal protection and voting rights regardless of race, won the vote for women, enabled a progressive income tax, ended the poll tax barrier to voting and prevented states from depriving Americans over 18 years old the right to vote based on age,” he wrote in The Hill newspaper last month.