Ignoring the Citizens United elephant-in-the-room

Fourteen years ago this month, the Supreme Court in a 5-4 decision issued one of the worst legal opinions in American history, so clearly flawed that polls consistently show Americans across the vast political divide widely agree it should be overruled. The case name has since become shorthand to describe the degradation of American democracy and the corrosive impact of a powerful few billionaires and corporate interests who can now spend unlimited funds in secret to bend our government to serve their will, instead of the public interest. This notorious case is even known by the name of the right-wing secret money “nonprofit” that brought it to the Court: Citizens United.

That’s why, when I tuned in just before Christmas to watch a House Ways & Means Subcommittee on Oversight hearing titled The Influence of Non-Profits on American Politics, I expected the topic of how best to fix the flawed Citizens United decision to be the central focus of witness testimony and members’ questions. Instead, I was perplexed to hear Subcommittee Chairman David Schweikert (R-Ariz.) fail to even mention Citizens United during his opening statement. In fact, Schweikert’s only acknowledgement of the existence of Citizens United came in response to a question from Rep. Bill Pascrell (D-N.J.) about whether Schweikert agreed that Citizens United was wrongly decided. Schweikert reacted as if that was a question he’d barely even considered, signaling to Pascrell that Schweikert was “not so sure.” 

This blinders-on approach to Citizens United played out in what turned out to be a disappointingly partisan hearing that awkwardly avoided addressing the real problems. The hearing featured as its chief witness Stewart Whitson, the legal director for a secret money tax-exempt non-profit based in Naples, Fla. called the Foundation for Government Accountability (FGA). While Whitson described the FGA in his written congressional testimony as “a non-partisan, non-profit organization,” in other venues the FGA seems to make no secret of its right-wing affiliations: Its website features Florida Gov. Ron DeSantis, a Republican presidential candidate, speaking at an FGA meeting, and a glowing endorsement from Rep. Andy Biggs (R-Ariz.), a former House Freedom Caucus chairman.  

While Whitson declined to discuss his organization’s funding at the congressional hearing, independent scrutiny of FGA’s funding has revealed its largest known source of funding is right-wing Illinois billionaire and election-denier Richard Uihlien, whose foundation has given FGA $17.6 million since 2014. Despite FGA itself not disclosing the sources of its funding, research of the tax filings of other organizations has revealed a litany of other right-wing funders, such as the Charles Koch Foundation, Adolph Coors Foundation, Scaife Foundation, and Leonard Leo’s “dark web” of shadowy entities.

Understanding this context, perhaps it’s no surprise that the FGA’s testimony and that of a similar witness from the right-wing Capital Research Center focused not on the corrosive impact of corporate funders and right-wing billionaires channeling their wealth to sculpt American democracy to serve them, but on the purported wrongs done to democracy by voter registration efforts that increased voter participation in recent elections. The alleged big bad highlighted in the FGA’s testimony was an effort to increase federal funding to non-profit organizations to “Promote voter registration and promote voter participation,” by President Biden’s 2021 Executive Order Promoting Access to Voting. The Capital Research Center’s testimony similarly attacked charities for “registering millions of persons” to vote.  These witnesses never explained why increasing voting in American elections is a problem at all. Could it be that they fear that the greater the participation of everyday Americans in our elections and democracy, the less influence their right-wing billionaire and corporate donors will have?  

In addition to ignoring solutions to Citizens United and empowering these weird right-wing attacks on voter registration, this oversight hearing was disappointing for another reason. There is an actual and urgent problem that has stifled nonpartisan civic participation for years, one which Congress is aware of and should be focused on fixing. Unclear lines around the definition of political activity in the tax context contribute to misplaced concerns around nonprofits that are doing legitimate and vital civic engagement work, including voter registration. The House Ways & Means GOP majority’s request for information issued in August 2023 asked whether updated guidance is needed on how to define political activity — and the answer is a resounding yes. There seems to be an emerging bipartisan consensus that clearer rules for all nonprofits would encourage nonpartisan civic participation, ease enforcement, promote compliance, and make it more difficult to abuse the system. This would be a far more productive way for Congress to spend its time in this area in the coming months, instead of enabling bizarre attacks on voter registration drives.

As we mark the ignominious anniversary of the notorious Citizens United, let’s focus our energy in the crucial year ahead on congressional hearings and actions that would actually repair our elections, strengthen our democracy, and shine sunlight on the flood of secret money that has overtaken American elections. In addition to clarifying the rules for nonprofits to engage in nonpartisan civic activity, the Freedom to Vote Act will improve access to the ballot for all Americans by enacting automatic and online voter registration, encourage voting by making Election Day a National Democracy Holiday, unmask secret money donors by requiring entities spending on elections to disclose their funders, and enact a suite of other commonsense reforms. If Congress acts in 2024 to send the Freedom to Vote Act to the president’s desk instead of wasting time on more pointlessly partisan hearings, then this time next year, instead of somberly marking another Citizens United anniversary, we can celebrate a healthier democracy.

Jon Golinger is the Democracy Advocate for Public Citizen.