Happy anniversary! It has been five years since the Supreme Court’s landmark decision that shook up the world of campaign finance. Not all the changes came at once, but they’ve evolved to create a much different terrain for candidates running for office and for people of means who take an interest in politics. We can’t speculate as to whether the Court’s current justices would produce a similar 5-4 result knowing how things have turned out, but we offer some facts to ponder:

– A huge amount of money comes from very few donors

In 2006, only two donors gave more than $1 million to outside groups. During the presidential election cycle of 2008, eight donors gave $1 million or more. In the years following the Supreme Court’s Citizens United v. FEC decision, the number of donors giving such sums has ballooned to include 26 in 2010 and 126 in 2012. In the most recent midterms, 84 donors gave $1 million-plus to outside groups, more than triple the number in 2010.

Super PACs have become a tool for the wealthiest donors. In 2012, just 1 percent of donors gave more than 68 percent of the $828 million raised by super PACs. And these are just the donors we’re aware of; none of these numbers include sums given to the dozens of 501(c) organizations that have spent hundreds of millions over the last four election cycles without disclosing their donors. It may be impossible to know with any certainty what corporations or individuals are funding these groups, but it is clear that in many cases the largest groups are being funded by only a handful of wealthy donors.

– That translates into more overall money coming from a smaller pool of overall donors

Most Americans don’t give political contributions. As noted above, 1 percent of super PAC donors account for the bulk of the money raised by super PACs, but zooming out and looking at overall contributions shows that the pool of donors is even smaller. Only 0.4 percent of the US population gives more than $200, the Federal Election Commission’s threshold for requiring donor identification. A much smaller percentage, 0.08 percent, gives $2,500. Yet this small portion of the population more than $200 in 2014 was responsible for more than 68 percent of the money raised during the midterms.

In 2014, an even smaller group of donors was given the opportunity to give even more. The Supreme Court decided in McCutcheon v. FEC that the law’s aggregate limits, which kept donors from giving more than $123,000 to all candidates, parties and PACs over a two-year cycle, violated the First Amendment rights of those who wanted to give more. Very few people ever brushed up against those limits in the first place, though. In 2012, only 646 donors hit the cap, a little over 0.000002 percent of the population. In 2014, 604 donors blew past the limits, giving a combined $31 million more than they would have been able to give if the aggregate limits had stayed in place.

This all came together to make 2014 the most expensive midterm in history, despite the fact that the record sums of money came from fewer donors than in 2010.

– Not only is there more big money, but more dark money

The 2014 midterms also saw more spending in congressional elections by organizations that don’t disclose their donors than any previous election. More than $170 million was spent by these groups — primarily 501(c)(4) social welfare organizations and 501(c)(6) trade associations that aren’t supposed to have politics as their primary purpose and don’t have to disclose their donors to the public.

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Spending by such groups wasn’t spurred by Citizens United — that honor goes to a case called Wisconsin Right to Life v FEC which caused the first jump in spending by “dark money” groups in the 2008. But Citizens United opened the door for more direct politicking.

Most of the growth in spending by these groups in 2014 was driven by liberal organizations, which spent three times more than they had in 2010. However, it was still the case that the vast majority of spending by nondisclosing groups was from the conservative end of the spectrum, which has been true since such spending started climbing in 2008.

– Big money is funding single-candidate super PACs and, as of 2014, single-candidate dark money groups

A central premise of the Citizens United decision was that the unlimited funds spent by corporations and unions would be entirely independent of the candidates themselves, and thus not liable to corrupt the candidates supported by the funds. Following SpeechNow.org v. FEC, an appellate court decision issued only a few months after Citizens United, super PACs were created, and almost immediately operatives began to create super PACs supporting candidates they were close to. In more than a few instances, these independent groups were funded by family members of the candidate. In 2012, 103 super PACs existed only to support one candidate, and that number edged up to 104 in the 2014 midterms.

The last cycle also saw a new step in the evolution of non-coordination coordination: single-candidate dark money groups. These groups — primarily 501(c)(4) social welfare organizations with no other obvious mission but to get a specific candidate elected — not only strain the FEC’s rules against coordination, but also the IRS’ rules regarding political activity by these groups. Social welfare organizations are supposed to keep their political activity limited to less than half of what they do, but we’ve shown repeatedly that those rules are frequently circumvented — both through creative accounting and by virtue of the fact that the IRS is a weak regulator. The single-candidate dark money groups that popped up in 2014 either didn’t exist or hadn’t raised money before the midterms, and they had no demonstrable purpose aside from direct and indirect electioneering for a single candidate.

This growth in dark money in general, and candidate-specific dark money groups in particular, only stands to continue in 2016 as the IRS has again stalled in the process of proposing new, clearer guidelines for how much political activity is too much for 501(c) organizations.

– New party accounts = return to soft money?



As each of the court decisions mentioned above have whittled away at the regulations implemented by the Bipartisan Campaign Reform Act of 2002, commonly referred to as McCain-Feingold, it’s probably fitting for Congress to join the fun and help bring things back to where they were before the landmark bill was signed by President George W. Bush.

This, too, can be seen as a consequence of Citizens United, which has fueled the rise of powerful, well-funded outside groups to such an extent that the Democratic and Republican parties were viewed as less and less relevant. A last-minute provision added to a must-pass spending bill last December, crafted by Democratic lawyer Marc Elias, helped the parties out by allowing them to set up new, separate funds with separate limits. No longer will the three party committees on each side of the aisle be limited to collecting a total of $194,400 from a donor — already nearly four times the median household salary in the U.S. Now, in what some view as a return to the pre-2002 days when parties could collect unlimited amounts of “soft money,” each party of the six party committees on can create two new arms for the vaguely defined purposes of 1) legal expenses and recounts, and 2) “building expenses.” Each of these new party apparatuses can raise an additional $97,200. On top of that, the Democratic National Committee and Republican National Committee can each set up accounts to help pay for their presidential conventions. All told, this means a wealthy couple can give $3 million to party committees in a two-year period.



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