Citizens United

Today we explain one of the most controversial Supreme Court decisions in modern history; the case that defined campaign donations as speech and therefore protected under the First Amendment, regardless of who made them. This episode (first produced in 2022) explains the history of the case, PACs, Super PACs, the ruling, the effect of the decision on our campaign system, as well as some common misconceptions. Our guides through the case are Professor Jeff Bone from Saint Joseph's University, Maggie Severns from Grid, and Professor Hye Young You from New York University. INCOGNI Deal: To get an exclusive 60% off an annual Incogni plan, go to incogni.com/CIVICS Learn more about your ad choices. Visit megaphone.fm/adchoices

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:02Nick Capodice?

  Hello, everyone. Nick here. I am recording these words a mere few days before the polls open on November 3rd. But by the time you hear these words, the midterms will be over, and you're going to be back to regular commercials selling products instead of promoting people running for office. And I wonder if you, like me, felt that this election in particular, the 2026 midterms, had a lot, and I mean a lot, more ads? It could just be because we are spending more time watching videos on our various devices. But at this point, me and my kids can quote, chapter and verse, about 10 different ads tied to one race in

• 0:45Nick Capodice?

  our state. If you felt the same way, there is a reason for that. And that reason is kind of what this episode is about. Ads cost money, and as of right now, CNN has reported that over $16 billion has been raised for these midterm campaigns nationally. This episode is about a landmark Supreme Court decision from 2010, Citizens United versus the FEC. This decision altered how money and elections intertwine. And just for fun, let me tell you about the last midterm election before 2010, before this ruling. It was the 2006 midterms. Do you know how much was raised by the two parties in that election?

• 1:29Nick Capodice?

  About $900 million. Under a billion. 2026 midterms, again, $16 billion. It is indeed the most expensive midterm in U.S. history. And you might be thinking, well, you know, things are expensive everywhere. Billionaires all over the world influence politics, and you're not wrong. But by comparison, in a significant parliamentary election in 2024 in the UK, a grand total of $125 million was spent, just two years ago. Yes, our governing system is unique, but so too is our election process. In the months to come,

• 2:11Nick Capodice?

  we're going to start to get a clear picture of where exactly that $16 billion came from, which individuals thought it was such a worthy investment, and finally, what that money got them. But for today, we're going to start with how we got here. So here is a complete breakdown of Citizens United versus FEC. Stick around.

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• 4:39Nick Capodice?

  There aren't a lot of functioning democracies around the world that work this way, where you can basically have millionaires and billionaires bankrolling whoever they want, however they want, in some cases undisclosed.

• 4:55Speaker 04

  So we're here today, once again, to say enough is enough. It's time for the people to take back their elections. It's time to overturn Citizens United.

• 5:07Nick Capodice?

  You know, I had to raise a lot of money for my campaign. So I, there's nobody who operates in politics that has perfectly clean hands on this issue.

• 5:20Nick Capodice?

  I'm Nick Capodice.

• 5:21Hannah McCarthy?

  I'm Hannah McCarthy.

• 5:22Nick Capodice?

  And this is Civics 101, the podcast refresher course on the basics of how our democracy works. And today, we are going to break down the Supreme Court decision that Jimmy Carter called stupid, that Barack Obama openly criticized at a State of the Union address, that former Supreme Court Justice Ruth Bader Ginsburg said in an interview would be, quote, "the impossible dream to overrule Citizens United versus FEC 2010."

• 5:51Nick Capodice?

  In this episode, you are going to learn about the case and a lot of initialisms, the FEC, BCR, known as BICRA, PACs, super PACs, and you're also going to learn about corporations, dark money, and finally, how this decision has affected political campaigns in the last 12 years. And all in about 20 minutes. 30 minutes.

• 6:16Hannah McCarthy?

  Can we just get the name out of the way first? I know the FEC stands for the Federal Election Commission, but who or what is Citizens United?

• 6:25Nick Capodice?

  Citizens United is a nonprofit organization that has, for a long time, made ads and documentaries that support conservative politicians. The head of Citizens United, David Bossie, was Donald Trump's deputy campaign manager.

• 6:39Speaker 04

  The reason that the people on the left are upset is because he's keeping his promises. He says what he means, and he means what he says.

• 6:46Nick Capodice?

  They are funded by the Koch Brothers and a lot of other sources. They are a PAC, a political action committee, which I'm going to get into in just a little bit. Do you remember we got to interview Michael Dukakis, the Democratic nominee for president in 1988?

• 6:57Hannah McCarthy?

  Do I ever?

• 6:58Speaker 06

  It's got to be 50 states, 200,000 precincts. I don't want to hear about reds, blues, and purples. I mean, it's all just nonsense. God.

• 7:06Nick Capodice?

  Citizens United were the ones who made one of the most infamous political commercials in history, the racist Willie Horton attack ad in 1988. Dukakis not only opposes the death penalty, he allowed first-degree murderers to have weekend passes from prison.

• 7:23Hannah McCarthy?

  Oh, right. The ad that helped George H.W. Bush win the election.

• 7:27Nick Capodice?

  Mm-hmm. And in 2008, they released a film called Hillary the Movie, which was purely a hit piece on former First Lady and presidential candidate Hillary Clinton.

• 7:39Speaker 04

  Hillary is really the closest thing we have in America to a European socialist.

• 7:43Nick Capodice?

  Oh, isn't that amazing? Oh, it's a woman. She can walk and talk. This movie is at the center of one of the most famous or infamous decisions in our lifetime, Hannah, a decision about who can give to political campaigns and how much. And we begin our tale with one of the most expensive political campaigns in history.

• 8:08Speaker 04

  So if you want to go way back, historically, there were no limits in the 1800s.

• 8:13Nick Capodice?

  That's Jeff Bone. He is an assistant professor at St. Joseph's University in Philadelphia.

• 8:18Hannah McCarthy?

  No limits at all on campaign spending in the 1800s?

• 8:22Nick Capodice?

  None at all. And this wasn't really talked about, as nobody was really spending massive amounts of money on campaigns.

• 8:28Speaker 04

  But this became an issue towards the end of the 19th century with the rise of donors like wealthy corporations and other individuals who were starting to dominate political campaigns.

• 8:42Nick Capodice?

  But that big campaign was 1896, when William McKinley was running for president. My fellow citizens, recent events have imposed upon the patriotic people of this country. $16.5 million were raised for his political campaign. In fact, his chief fundraiser, Mark Hannah, said, quote, "There are two things that are important in politics. The first is money, and I can't remember what the second one is."

• 9:10Hannah McCarthy?

  Okay, I know inflation calculators aren't 100% accurate, but is there a rough estimate of what that comes out to today?

• 9:17Nick Capodice?

  Yeah, roughly about half a billion dollars.

• 9:19Hannah McCarthy?

  Wow.

• 9:20Nick Capodice?

  More than Mitt Romney raised in 2012. And then, more and more, campaign donations from corporations were becoming quite concerning to the public and the press.

• 9:32Hannah McCarthy?

  And just to be clear, what do we mean when we say corporation?

• 9:39Nick Capodice?

  Such a tricky word to define. Simply, a corporation is a legal business entity that's separate from its owners.

• 9:49Speaker 04

  Corporations have existed far before the United States, and the concept was borrowed from England and from Europe, generally speaking, where corporations were given charters typically by a monarch. The responsibility of a corporation, which by the way, were huge. We're talking about corporations that existed to engage in trade with the East, to be colonial powers in North America. And they did serve a purpose. I don't know if we would call it a public welfare purpose today because it was really serving the interests of the governments back home.

• 10:27Nick Capodice?

  Today, just about every large business is a corporation. You and I could make one right now. We could just be the two shareholders who invest in it. We make money on stocks and dividends, and you and I are not personally liable for any company debt. Corporations can be one person, too. You think you just have one shareholder.

• 10:45Speaker 04

  And just to be more clear on what that practically means, corporations can engage in contracts, they can have bank accounts, they can do things that any other individual person can do. But this is a bit of a fallacy because of course, corporations aren't people. They can't, when it comes to politics, run for office. They don't have political beliefs in the same way you or I do and other living people do. However, the law does accord them the privilege, without much responsibility behind it, to have these liberties.

• 11:21Nick Capodice?

  The first legislation about corporations and their relationship to political campaigns begins with that trust-busting, safari-going bull moose.

• 11:30Hannah McCarthy?

  Or maybe just Teddy Roosevelt. You could go with that.

• 11:34Speaker 04

  I am leading because somebody must lead, or else the fight would not be made at all. There was a political scandal of the time that there was a large donations from corporations towards Republican candidates, including at the top of the ticket, Roosevelt himself. Now, this is in the era, too, of trust busting. The Sherman Act was brought in a few years before that to cut down on corporate power, generally speaking, and its dominance and ability to create monopolies and be beyond the control of the government to regulate. So there was swift action.

• 12:13Nick Capodice?

  Teddy Roosevelt signed into law the first campaign finance law in US history, the Tillman Act of 1907. This act prevented corporations from giving money to candidates directly, which Roosevelt had indeed benefited from himself in the past. So this act washed his hands of the taint of corruption.

• 12:32Speaker 04

  Which remedied the political scandal that had media entities like the New York Times making statements that this is the problem. This is leading to potential corruption by allowing corporations to contribute whatever they want and to decide who's going to win the outcome of these elections.

• 12:50Hannah McCarthy?

  Is the Tillman Act still in effect?

• 12:52Nick Capodice?

  In a sense, it is. Corporations are still not allowed to directly give to campaigns from their coffers.

• 12:59Hannah McCarthy?

  Though I have a feeling there's a workaround.

• 13:01Nick Capodice?

  There is a workaround, and we're going to get there. So that's how things stood. Over the years, a bunch of other acts came along that tweaked campaign funding laws. But the problem was, there wasn't really anybody minding the store. Who should be in charge of making sure nobody breaks the law when it comes to campaign financing? And there is a bit of an irony in who gets the ball rolling.

• 13:27Hannah McCarthy?

  Cool, I know that campaign song.

• 13:32Nick Capodice?

  That's Nixon Now. Richard Milhouse Nixon signed the Federal Election Campaign Act of 1972, one of the provisions of which required campaigns and political committees to report the names, addresses, and occupations of donors of more than $200 to campaigns. I mean, it is kind of funny, isn't it?

• 13:52Hannah McCarthy?

  It is kind of funny. And by the way, everyone, the reason why Nick and I find this kind of funny is that 1972 is also the year of the Watergate break-in and the beginning of the investigation which uncovered that Nixon's reelection campaign involved money laundering and illegal slush funds, all of which resulted in his resignation.

• 14:11Nick Capodice?

  In all the decisions I have made in my public life, I have always tried to do what was best for the nation.

• 14:22Nick Capodice?

  Nevertheless, in 1974, partially in response to Nixon's shady dealings, the Federal Election Campaign Act was amended to create a new regulatory agency, the FEC, which, as you said, Hannah, stands for Federal Election Commission. And what do they do? They enforce campaign finance laws, one of which is a bit of a workaround, that while donations are limited to candidates, donors could donate unlimited money to political parties instead, if and only if the party used that money for what were called, quote, "party-building activities." This is what is now referred to as "soft money."

• 15:03Hannah McCarthy?

  "Party-building activities"? Is that like helping people register to vote?

• 15:07Nick Capodice?

  Yeah, and making commercials that aren't about specific candidates but are about issues, you know? Like, the people need to know that crime is an issue and Candidate X is weak on crime. It doesn't say, "Don't vote for Candidate X" or "Vote for Candidate Y," but it's pretty darn close.

• 15:22Hannah McCarthy?

  I feel like there's an awful lot of wiggle room in there.

• 15:25Nick Capodice?

  A ton. So much wiggle room that Senators John McCain and Russ Feingold reached across the aisle to create a new act. It was so important that a Democrat and a Republican did this together, they put it in the name, B.C.R.A., or BICRA, the Bipartisan Campaign Reform Act. It's also called the McCain-Feingold Act. This act said that corporations cannot make a political ad that names a candidate 30 days before a primary or a caucus, or 60 days before a general election.

• 15:57Hannah McCarthy?

  And this is where the creation of Hillary the Movie comes in, right?

• 16:00Nick Capodice?

  We are so close. Hillary the Movie was created in direct response to another movie. Members of Congress, this is Michael Moore. I would like to read to you the USA Patriot Act.

• 16:16Nick Capodice?

  Fahrenheit 9/11. Michael Moore's documentary about George W. Bush's response to September 11th was released in 2004, a scant few months before the election between George Bush and John Kerry. Michael Moore, by the way, has made several movies about politically charged topics. And someone filed a complaint to the FEC, saying, "Hey, this movie violates BICRA. It was funded by corporate entities. It names a candidate, George W. Bush. Ads for this movie should not be aired 60 days before the election." And you know who made that complaint?

• 16:51Hannah McCarthy?

  Who?

• 16:52Nick Capodice?

  A certain little nonprofit called Citizens United.

• 16:56Hannah McCarthy?

  The same corporation that made their own political ads, and now they're mad that someone else is doing it?

• 17:02Nick Capodice?

  Yeah. The FEC dismissed the complaint, though, and Citizens United went on to make their own movie in response four years later, Hillary the Movie. Again, a 90-minute attack on Hillary Clinton. It came out just before the primary between her and Barack Obama. The FEC said that ads for this movie could not air before the primary. Citizens United sued, and it moved up the court system to the very top. And what happened next resulted in one of the most influential Supreme Court decisions in US history. And that's coming up right after the break, here on Civics 101.

• 17:38Hannah McCarthy?

  But first, if you want a primer on more Supreme Court decisions, along with a breakdown of every branch of government, our election system, our foundational documents, and a history of our main parties, Nick and I took what we learned over many years of getting to know our government and systems and put it into a book. It's called A User's Guide to Democracy: How America Works. And you can get it at your bookseller of choice.

• 18:01Nick Capodice?

  And by the way, the cartoons in our book were drawn by the brilliant Tom Toro, who has just illustrated a children's book called I'm Terrified of Bath Time. You should check that out while you're at it.

• 18:15Nick Capodice?

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• 21:09Nick Capodice?

  Bonjour, compadre. It's the

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• 21:41Hannah McCarthy?

  All right, we're back. Citizens United versus FEC is being argued in the highest court of the land. So Nick, what is the question they're arguing?

• 21:50Nick Capodice?

  Well, at first, it's what we call a very narrow question. It's very specific to one moment in time. Can Citizens United distribute and advertise Hillary the movie on on-demand cable just before the primary? But as so often is the case, narrow questions can become big, sweeping rulings. We'll hear argument today in case 08205, Citizens United versus the Federal Election Commission. Mr. Olson. Mr. Chief Justice, and may it please the court.

• 22:23Nick Capodice?

  There's a famous moment in the argument where the person representing the FEC, Deputy Solicitor General Malcolm L. Stewart, is asked by the justices, "Well, what about a book? We're talking about a movie here, but what about a book?" That's pretty incredible. You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?

• 22:48Speaker 06

  I'm not saying it could be banned. I'm saying that Congress could prohibit the use of-

• 22:51Nick Capodice?

  Can the government ban a book critical of a candidate if it comes out before an election? And the more conservative justices latched on to that and did not let go. They were very anti-banning books. The court meets to discuss how they're going to vote, and it seems like it's 5-4 in favor of Citizens United. Chief Justice John Roberts was poised to write the opinion, and Justice David Souter, the dissent. But New Yorker reporter Jeffrey Toobin revealed that Souter's dissent was not your run-of-the-mill dissent. It was very critical of Chief Justice Roberts, and that it, quote, "aired the court's dirty laundry." So Roberts said the case would be reheard in the next session, and Justice Kennedy would write the opinion,

• 23:36Nick Capodice?

  and Justice Souter retired.

• 23:39Hannah McCarthy?

  Whoa. Will we ever know what was in Justice Souter's dissent?

• 23:43Nick Capodice?

  We will if we live that long, Hannah. His papers are set to be released in 2060. So in the next session, the decision was announced. Justice Anthony Kennedy wrote and read the opinion, and in a rare occurrence, Justice John Paul Stevens read his dissent, which was longer than the opinion, aloud from the bench.

• 24:02Hannah McCarthy?

  That never happens, right?

• 24:03Nick Capodice?

  Sometimes.

• 24:04Speaker 02

  While American democracy is still imperfect, few outside the majority of this court would have thought its flaws included a shortage of corporate money and power politics.

• 24:18Hannah McCarthy?

  Okay, so the thing that everyone says about Citizens United, the sort of pop culture phrase that we all know about it, is that Citizens United decided that corporations are people.

• 24:29Nick Capodice?

  Yeah.

• 24:30Hannah McCarthy?

  Did it say that? Is that in there?

• 24:32Nick Capodice?

  No, it did not. Interestingly, that is not in Justice Kennedy's opinion. The decision says political speech rights do not depend on the identity of the speaker. That speaker can be a person or a group of people.

• 24:46Hannah McCarthy?

  Okay, so campaign donations are considered speech. Speech is protected by the First Amendment. Corporations also have those protections. So does that mean that corporations can now give to campaigns?

• 25:00Nick Capodice?

  No, and this is a very common misconception. Corporations, even after the ruling, still could not give directly to candidates. But they could give indirectly through what are called PACs. And now, we need to get some definitions out of the way.

• 25:17Speaker 02

  Yeah, so all these different groups, PACs, super PACs, dark money groups, they're all just different ways of setting up a group that's going to spend money on an election.

• 25:28Nick Capodice?

  This is political reporter Maggie Severns. She covers policy for Grid.

• 25:32Speaker 02

  A PAC is a political action committee. It is kind of a bucket where money goes in and money goes out. Now, PACs have been around for quite a while, and PACs have pretty strict limitations on what they can take in and how they spend. So a PAC can give money directly to a candidate, but they can't give that much money. The most kind of traditional PACs might be PACs that are kind of associated with a company or a political group, and they're not part of that group, but everyone who is involved in technology might all give $5,000 to the technology PAC. And then the technology PAC gives $5,000 each to candidates that are doing what people in the technology sector want. And for a long time, that was PAC spending.

• 26:17Speaker 02

  That's all it was, is, you know, you would kind of take in these donations from a lot of people that, you know, believed in one cause, and then you would give those donations to a campaign.

• 26:26Hannah McCarthy?

  All right, $5,000 is the limit for campaign contributions from a single source. A bunch of people give that amount or less to a PAC they care about, and the PAC is in charge of allocating that money.

• 26:40Nick Capodice?

  Right, and the ruling in Citizens United did not change that. Your PAC cannot give more than $5,000 directly to each candidate. But then, we get to super PACs.

• 26:52Speaker 02

  Now, a super PAC was created after Citizens United, and they can take in unlimited amounts of money for anyone. So they could take that, you know, $3 million check, whereas a PAC can only take in the low thousands of dollars, depending on who they're getting their money from. So a super PAC is really what enabled that big money spending, because then a super PAC can go out and buy an ad and drop $2 million on an ad. You have all kinds of super PACs. Some of them just support one person. Some of them support, you know, all Republican candidates or all Senate races. So Citizens United really opened the door for a super PAC to exist, because there was no unlimited political spending before Citizens United.

• 27:35Hannah McCarthy?

  Now, just to make sure I have it, super PACs don't give money to candidates, but they spend money to support candidates. A regular old PAC can give money to a candidate, but it's limited. Individuals and corporations can spend unlimited money to support a candidate, but they can't give it directly to them.

• 27:57Nick Capodice?

  Right, and there's this hard rule about that, referring to coordination. Super PACs may not, under any circumstances, have any sort of coordination with a campaign. They can't tell them what to do. If I'm running for office, I can't call the super PAC that's like spending millions of dollars to get me elected and say, "Hey, could you run an ad where I'm in a pickup truck, and I'm talking to folks at a diner, and I'm looking real concerned? And then my opponent is drinking champagne at a fancy restaurant? Can you do that for me?" Uh-uh, not allowed.

• 28:29Speaker 02

  Talking about people trying to get away with one thing or another. You can look at coordination as being a really interesting example of that. So there's this thing called red boxing or yellow boxing, where when a committee, let's say that I am the D-triple-C, and I'm in charge of electing Democrats to Congress. And I think to myself, man, I really could use a PAC to run a bunch of ads about how this candidate's opponent is really bad on the economy. But I can't talk to the super PAC, right? Because there's no coordination between a candidate or a committee and the super PAC. They're supposed to be totally independent. What folks started to do, all these different, you know, and this goes for both sides of the aisle, they were all kind of experimenting, is you would actually, on your website,

• 29:14Speaker 02

  put a little yellow or red box, and it looks very like Web 0.0. It looks very kind of dorky. And it'll say something that sounds kind of cheesy and coded, saying like, "People in Missouri need to know this." You click on the box, and it'll take you to a page that they've developed with all the language that they would like in the ad.

• 29:33Hannah McCarthy?

  I'm not telling you what to do with the gun, but I'm going to leave it right here on the table for you.

• 29:37Nick Capodice?

  I know. And Maggie sent me a link to an archived website, thank you, Internet Archive, with a box just like that. The box said, "Ohio needs to know." And I clicked on it, and I saw a bunch of messaging and a link to archival footage from the campaign trail.

• 29:55Hannah McCarthy?

  Footage that might just be perfect to put in an ad.

• 29:58Nick Capodice?

  Yeah, hypothetically, of course. That was the funny thing. It was like, here are the arguments- We feel, and here's just a ton of footage for B-roll. It's just, it's, it's just generic candidate on the campaign trail. Do what you want with it. And it's not just red boxing. There are Twitter accounts that come out of nowhere with suggestions for super PACs. Books full of opposition research get sent to offices. There are ways around coordination.

• 30:26Hannah McCarthy?

  Now, I want to get back to something you said about the decision. And it was confusing for me because I did think like so many others that this case was about corporations being allowed to give huge sums of money to candidates through super PACs.

• 30:39Nick Capodice?

  Yeah, this caught me off guard, too.

• 30:41Speaker 02

  Every student, you know, have perception that, you know, Citizens United fundamentally changed American politics and campaign finance system.

• 30:50Nick Capodice?

  This is He Young Yu, professor of political science at New York University. He Young said that this is her number one misconception that her students have about the case.

• 30:59Speaker 02

  But when we look at details, yes, there are parts that Citizens United really transformed, you know, campaign finance in the US. But at the same time, there are sections that Citizens United didn't touch at all. For example, you know, the direct campaign contribution made to the candidate that has not changed at all by the, you know, Citizens United. So, but, you know, students have this perception. This is, you know, the boom. We, you know, everything changed after Citizens United. And also, but because of, you know, political rhetorics, a lot of students assume that corporations and big banks, right, the big corporations, they spend tons of money to sponsor super PACs after Citizens United, which is not true.

• 31:44Hannah McCarthy?

  But why? Like, if I were the head of a company and I knew a politician was going to pass legislation that helped my industry, wouldn't I do whatever I could to get them elected?

• 31:54Nick Capodice?

  Aha, but if you're a big company that's in the public eye, like Google, Apple, AT&T, McDonald's, you have shareholders. You have a board to answer to. You have the public and the press watching your every move and tweeting about it. All of those entities are going to find out who you gave your money to. And for example, He Young referenced the January 6th insurrection.

• 32:17Speaker 02

  After that, you know, some of the consumer, the activists, or some of the, you know, people on Twitter and social media, they actually revealed, you know, these are the corporations who donated to the politician who endorsed January 6th riot. And what happened after that? A lot of corporations, they withdrew, you know, they withdrew their donation from those politicians and they are, you know, they don't make a donation in the next election cycles, right? Companies, you know, even though they have a lot of power and wealth, still, you know, you need to cater to consumer preferences, you need to cater to shareholder preferences. So there are some constraints that corporations face.

• 32:59Speaker 02

  And that's why, even though a lot of people, including, you know, President Obama, Senator Warren, you know, really worry about the explosion of money, yes, we had explosion of money, but not by the corporations, but mostly by wealthy individuals who are really politically active.

• 33:16Nick Capodice?

  And I do want to add one wrinkle to this. Jeff Bone sent me a report about a way that corporations have begun to start to increase spending on campaigns that absolves them of all public scrutiny. Briefly, there are large nonprofits called 527s, the biggest of which are the Republican and Democratic Governors Associations. So corporations have been giving to them, and that's public information, we all know it. And then those associations give that money to other super PACs to influence state and local elections.

• 33:48Hannah McCarthy?

  Aha, and since those 527s, which I'm, I've never heard about before this, are just massive, generic buckets that then go to other places, it's impossible to hold a corporation accountable, right? As there are so many steps.

• 34:03Nick Capodice?

  Right. And the last 10 years, about $1 billion have gone to these associations, half of which came from public company treasuries. And in that time, Republican 527s have received twice as much money as Democrat 527s to influence local elections.

• 34:19Hannah McCarthy?

  However, He Young said the biggest donations in the wake of Citizens United, the explosion of money, has been from wealthy individuals to super PACs, right? So how much are we talking?

• 34:31Nick Capodice?

  A study was done on just the publicly available information on donations, not to speak of unavailable data, but about 400 families are responsible for half of all presidential campaign financing.

• 34:45Hannah McCarthy?

  That's a lot of money from a very few people. And when you're a candidate so heavily funded by one super rich person, you're probably going to do things that satisfy that person, right?

• 34:58Nick Capodice?

  Right, right, and nobody else.

• 34:59Hannah McCarthy?

  Yeah, but you said not to speak of the unavailable data. I do want to speak of the unavailable data, the non-public data. Are there donations given that we don't know about?

• 35:10Nick Capodice?

  Well, there shouldn't be, because PACs have to tell you who gives to them. Here's Maggie Severance again.

• 35:16Speaker 02

  PACs have always had to disclose their donors. The Supreme Court, when they did the Citizens United opinion, it said that this principle of transparency and disclosure that's kind of been around with PACs for a while should also apply to unlimited political spending. So as long as you are disclosing what you're doing, then the spending is constitutional. For example, one thing that we've seen more and more with super PACs is that someone will give to an organization, you know, maybe a 501(c)(4), who will then transfer that money to the super PAC. Well, do you know where that money came from, if it's being transferred from one group to another? Yeah, so there are a lot of nonprofit organizations, and so it's the 501(c), so

• 36:01Speaker 02

  that's basically our IRS, you know, code, right? So when IRS, you know, tried to set the tax rate. And 501(c) is basically tax exempt in nonprofit organizations. And for example, NYU is a 501(c)(3), which is, you know, the education. NRA, National Rifle Association, is a 501(c)(4). Planned Parenthood is also 501(c)(4). So 501(c)(4) is a social welfare organization, according to IRS definition. And these organizations, they are supposed to work to improve social welfare.

• 36:35Nick Capodice?

  These nonprofits, since they're supposed to work for social welfare, cannot spend more than 50% of their budget on campaign contributions.

• 36:45Speaker 02

  But the downside, or the one opaque, you know, thing downside is, when you donate, you can, you know, as an individual, if you're a wealthy individual or, you know, ordinary citizen, you can donate to Planned Parenthood, you can donate to NRA, right? But those donations are not disclosed.

• 37:02Hannah McCarthy?

  Okay, so someone could donate to a 501(c)(3) anonymously, and then that money gets transferred to a super PAC, and nobody knows who did it.

• 37:13Nick Capodice?

  Right. This is referred to as, quote, "dark money." That's becoming more and more prevalent. And these donations are not traceable. And if you're curious how all of this, super PACs, dark money, all of it, has affected how campaigns are run, here are some numbers. In 2008, the year of Hillary the movie, the FEC reported that a total of $1.6 billion was spent. By contrast, the 2020 election? Over $14 billion. 5.7 billion on the Trump-Biden race, and the rest on the congressional races. Now, each office is different, but nowadays, it costs a lot of money to run for Congress.

• 37:54Nick Capodice?

  The average is 1.1 million for a House seat, 6.5 million for the Senate.

• 38:00Hannah McCarthy?

  Now, we started with you saying how politicians and Supreme Court justices have criticized this decision. Did anyone you spoke to say there were any positives to this decision at all?

• 38:12Nick Capodice?

  I want to be forthright here and say that all three guests I interviewed were, quite frankly, critical of the decision. And so I asked Jeff if there was a plus side, a pro to the decision, and he gave me one.

• 38:25Speaker 04

  On the advantage side, businesses and multinational corporations are fairly nimble about responding to crisis. And I'm just thinking about even currently, in the situation between Russia and Ukraine, you see corporations responding in ways that perhaps governments are slow to, or there's constraints on government. And so there is a fair comment that businesses express some important democratic values and have agency and should be regarded and have an ability to speak to issues that are political in nature.

• 39:03Nick Capodice?

  You see, companies can move faster than politicians. They can do stuff without it going through Congress. These massive donations create a relationship between corporations and politicians. And that politician might ask a company to do something because the politician is unable to. And then I asked He Young for an advantage, a way the decision was in the nation's best interest.

• 39:27Speaker 02

  I'm not sure whether I can make that, you know, argument, because, you know, if you look at the sheer amount of money in American election, that's a mind blowing, right? Especially the, the amount of independent expenditures, you know, spent by super PACs. So do we really need this amount of money in elections? And, you know, US is a country that elect basically everybody, judges and prosecutors. And if you look at other countries, it's extremely Rare to find a cases that, you know, the judge is elected or prosecutor is elected. So now this is super PACs, they are not just spending money on, you know, presidential elections and Senate elections.

• 40:09Speaker 02

  They are in, you know, infiltrating the lower level elections, you know, county sheriff and judges, right? So in that sense, this is a national super PACs, you know, they are having so much power in terms of shaping every election result and every layer of the government.

• 40:29Speaker 04

  When an individual or a business has a substantial financial chest of, a war chest to support the political process, those are our lawmakers. Those are the ones that determine what the regulations are going to be. Citizens United by being a clear win for large money to say, there is no limits that the government can impose upon businesses and wealthy donors that want to influence an issue or use that money to advertise on behalf of a candidate are picking a winner

• 41:09Speaker 04

  or are letting those with money be those with power in the political process. And I, the impact on our politics is going to be corrosive as a result.

• 41:23Speaker 02

  If you can just cater to one billionaire, you don't need to appeal to broader set of voters, right? If one billionaire could, you know, finance, you know, 10 politicians compared to 200, you know, for example, 20 million people, I think that has a very different implication in terms of representation, political accountability and politicians, you know, behavior.

• 41:50Hannah McCarthy?

  What about the future of Citizens United? I can't help but look at that number $14 billion and wonder if it's ever going to go down or even stay static. Are super PACs just going to keep giving more and more?

• 42:09Speaker 04

  So one of the rallying cries of those who don't like the decision is quote unquote, overturn Citizens United. Because it is a court ruling, only the Supreme Court itself can quote overturn its decision. Though I will say every few years, someone in Congress proposes an amendment that will establish corporations as entities without First Amendment protections or put restrictions on dark money. And I asked Maggie about those amendments and she kind of laughed and said, yeah, yeah, you see those every now and then. Amendments aren't at all likely to be successful. And I'm not trying to be a killjoy or anything, but amendments require two thirds of both houses of Congress and three fourths of all states to be ratified and added to our constitution.

• 42:53Speaker 04

  So yeah, it's just not going to happen.

• 42:55Hannah McCarthy?

  So for those who do not like such a staggering sum of money in political campaigns, what's the good news?

• 43:02Speaker 04

  Well, I think there's two little pieces of good news. The first of which is a rising trend of politicians on both sides of the aisle raising significant sums, not from super PACs, not from dark money, but from people. Lots and lots of small donations.

• 43:21Speaker 02

  Anybody here know what the average contribution? Yeah. Right. $27. Now, this in itself is revolutionary.

• 43:38Speaker 04

  And the second upshot, Maggie made me stop and think about what all this money buys in the first place.

• 43:48Speaker 02

  Some money that's spent on elections is spent in a very effective way and political ads do move people's opinions somewhat. But especially as media gets more and more sophisticated, I think that consumers are getting more and more sophisticated. So people, I think people have a sense, one, that they're being kind of ripped off by Washington. They also, in some cases, this money doesn't sway an election as much as you would think. You know, when really well deployed, it can. But I, I think that kind of sophisticated consumers of political news can also increasingly kind of sift through things and form their own opinions. So I think it's important to remember that people aren't powerless in this situation. You're not, you know, there's no kind of earworm in your brain telling you exactly

• 44:33Speaker 02

  who to vote for and how to think. There are some kind of troubling things happening, but people can still take in information and make decisions for themselves.

• 44:44Speaker 04

  All right. Well, that's Citizens United versus the FEC. Okay. And maybe it turned out to be about 40 minutes instead of 30. I just tried to pack a lot in. Yeah, no, what I'm saying. This episode was made by me, Nick Capodice, with Hannah McCarthy. Our staff includes Jackie Fulton, Christina Phillips is our senior producer, and Rebecca Lavoy, our executive producer. Music in this episode by electro swing, Anatech, BioUnit, Eric Kilkenny, Auto Hacker, Bonkers Beat Club, Scott Gratton, Scott Holmes, Fabian Tell, Frances Wells, Dama Beats, and if

• 45:28Speaker 04

  that wasn't enough, Chris Zabriski. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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