<i>Citizens United</i> and The Assault On Public Pensions

Peter E. Borkon is an attorney at Hagens Berman’s San Francisco office. His practice is focused on securities class actions and shareholder derivative suits.

The current presidential primaries are a vivid demonstration that money buys political access. At this stage of the presidential primaries, it is statistically improbable that several of the remaining candidates could ever garner sufficient electoral votes to win the Republican nomination. Nevertheless, repeated infusions of unrestricted cash permit those campaigns to linger as long as the money lasts. This new normal for political contests comes to the electorate via the United States Supreme Court’s January 2010 decision in Citizens United v. FEC, 558 U.S. 08-205 (2010), where the Court held that the First Amendment prohibits the government from restricting political expenditures by corporations. This game-changing decision paves the way for a groundswell of independent and unfettered political spending from a new breed of political action committees – the Super PACs.

At the same time, pension funds are in the crosshairs. Many states are engaged in efforts to alter their public employee retirement plans and numerous unions are facing efforts to change their retirement benefits as well. In this environment, the breadth and power of Super PACs to influence the political dialogue is profound. Vast sums of campaign money are having an impact on the current election cycle and this spending directly threatens pension plans’ viability. Candidates from both sides of the aisle are increasingly pressured by big money to push for reforms (or elimination) of the pensions many workers spend their careers earning.

In the most recent election cycle, independent expenditures have skyrocketed from a mere $12.1 million in 2010 to $80 million in 2012. In the last presidential election cycle, total independent expenditures were $21 million. In other words, unless we are looking at an incredible coincidence, Citizens United has opened the proverbial floodgates to big money. Recently, the well-known Koch brothers put together a wealthy group of like-minded individuals who pledged $100 million to defeat President Obama in 2012. Those same brothers also backed antiunion measures in Arizona and Wisconsin.

Post Citizens United, numerous legislators have proposed a constitutional amendment to reverse the decision. In November 2011, Senate Joint Resolution 29 was introduced and co-sponsored by twenty two senators. S.J. Res. 29 was referred to the Committee on the Judiciary. Until that bill becomes an amendment, enforcing transparency is the only viable option to combat the big money flooding our political process. Efforts to require transparency from corporations are finding success. Prime examples are the New York Common Retirement Fund, CalPRS and CalSTRS’ success in using corporate proxy voting to force increased disclosure of corporate political expenditure. Making political donations visible to the public shines an uncomfortable light on who is lined up on what side of the fight. There is a reason that large political donors do not want their name revealed. Requiring such disclosure will not reverse Citizens United, but it will reveal who is funding the efforts to roll back your retirement security.