ASSUMPTIONS/

ASSERTIONS

With the advent

of the Internet,
prompt disclosure
of expenditures
can provide...
citizens with
the information
needed to hold...
elected officials
accountable for
their positions and
supporters.

POST-DECISION RECORD

The majoritys assumption of a modern, prompt, and adequately informative disclosure system had
virtually no basis in reality at the time of Citizens United and still does not. If anything, the problem of
undisclosed spending got much worse after that decision:
By creating a constitutional right to corporate campaign spending, the Court, with two 5-4
decisions in Citizens United and Wisconsin Right to Life (WRTL), effectively allowed outside
groups other than political committees to spend unprecedented amounts on election ads without
naming their donors.
Since the WRTL decision in 2007, political spending in federal races by groups that hide the
identities of their donors skyrocketed from almost nothing to more than $800 million in 2016.
The Brennan Centers preliminary analysis of state Supreme Court elections in seven states
indicates that 70% of outside television spending came from non-disclosing sources. Of the 20
groups that aired television ads in judicial elections in 2015-16, only 3 were fully transparent
(publication forthcoming).

- Justice Kennedy writing

for the majority, Citizens
United, 558 U.S. 310, 370

Disclosure would
be sufficient
to ensure that
no corporate
shareholders
would be forced to
subsidize speech
with which they
disagree, as there
is...little evidence
of abuse that
cannot be corrected
by shareholders
through the
procedures
of corporate
democracy.
- Justice Kennedy writing
for the majority, Citizens
United, 558 U.S. 310,
361-362

In reality, many large corporations funnel their election spending through 501(c) nonprofits that
can keep their donors secret, and so shareholders often do not even know when their money is
being spent on electoral advocacy. For example, in a 2012 regulatory filing, the insurance giant
Aetna inadvertently disclosed contributions to two conservative-leaning 501(c)(4) organizations,
totaling over $7 million. Shareholders would not have otherwise known the companys political
activities.
While a growing number of companies voluntarily disclose such spending, without a legal
requirement, many do not. And even when they do, there is frequently no way to verify the
information they provide. For example, in 2012 Dow Chemical purportedly gave more than $2.5
million to groups that spent to oppose strengthening collective bargaining rights in Michigan,
but did not disclose its role until well after the vote, when it voluntary posted on its website
contributions greater than $50,000 to trade associations and social welfare nonprofits. Despite the
voluntary disclosure, it was not possible to verify the accuracy or completeness of the numbers.