It’s increasingly hard to look away from political advertising during sports games.
Swing state or not, the airwaves are saturated, from both sides, in political ads. They also are getting worse. It isn’t an illusion that there have been more political ads than ever, with the notable exception of the political advertising-free Prime Video Thursday Night Football broadcast.
Over $10 billion is projected to be spent on political ads alone this election cycle, up from over $9 billion in already record-high levels in 2020. It’s not just that more money is being spent on ads, political campaigns in general are seeing an inordinate amount more spent on them than ever before. In 2008, the last federal election before the Citizens United ruling (more on that later), the combined cost of the federal election cycle was around $5 billion. That ballooned to $15.9 billion in 2020, with a similar amount projected this cycle for total spending.
Elections cost significantly more now, and a large chunk of that money is going toward the advertisements that have taken over live sporting events. How we got here is complicated, and involves a lot of moving parts, most notably the Supreme Court and small donors exploding in popularity.
Before 2008, presidential campaigns since 1971 were federally funded. A little box on your taxes, which is still there, when checked donates $3 to public financing of elections. This box provided the backbone of American presidential political spending. That, along with up to $250 matched by the federal government for donations to political campaigns, added up to around $84 million in money available for each major candidate for the 2008 presidential campaign. In return for this money from the government, candidates were capped at that amount of spending and unable to spend any more.
Crucially in 2008, then-Senator Barack Obama declined this public funding while Senator John McCain accepted it. Grassroots support, and the beginning of internet-enabled donations from small donors, led Obama to raise more than $575 million in private financing while McCain sat at the $84 million limit. This crucial calculus from Obama’s team, that they could outraise the spending limit, paved the way for the future of campaign financing and spending. No presidential candidate has accepted public financing since, with the contribution cap being easily outraised by campaign fundraising.
The end of public presidential campaign funding, and its monetary limits, resulted in vastly more small donors participating in political campaigns. It also set the stage for corporations, wanting a bigger piece of the new influence pool, setting up, crucially, the Citizens United Supreme Court Case.
In a 2010 ruling, Citizens United v. Federal Election Commission, the Supreme Court ruled that corporations, and outside groups, would no longer be restricted in campaign funding donations. The only limitation is that corporations, and outside groups known as Political Action Committees, cannot directly coordinate with political campaigns.
This ruling, which was 5-4 with the conservative justices in the majority, fundamentally altered American campaign finance and spending.
While corporations could form political action committees (PACs), and spend on campaigns before 2010, they were limited to a contribution limit of $5,000 to a candidate per election. Individuals were also limited to donating $5,000 each to these PACs. After the Citizens United ruling, in exchange for not directly coordinating with a campaign, these PACs started spending a lot more money on their political activities.
Shortly after Citizens United, in another landmark ruling, Speechnow v. Federal Election Commission, the D.C. Circuit Court of Appeals struck down the individual contribution limits to these PACs, and as a result, the colloquial term Super-PAC began to describe PACs taking unlimited sums from donors and in return spend unlimited sums on elections.
It’s hard to describe how monumental of a shift this was in campaign finance, from strict corporate and individual limits in 2008 of $5,000 per individual to a PAC and $2,300 to a candidate, to a truly unlimited amount to a Super-PAC.
It’s more than just that, as Super-PACs figured out easy workarounds to mandatory disclosure limits of their donors and campaign coordination. Since corporations could donate unlimited amounts to Super-PACs, individual donors simply can use their shell companies and anonymous non-profits to funnel money to a Super-PAC. This is the basis of what’s called “dark money” and allows wealthy individuals to donate huge sums to these Super-PACs anonymously.
Campaigns also quickly figured out the workaround to the requirement that they can’t coordinate with Super-PACs. Instead of any formal coordination, most campaigns now post pages of Super-PAC-specific information on their public websites. In doing so, they highlight issues that they want the Super-PAC to focus their advertising on. These go even further than just information, in many instances these vague webpages on a campaign site have included full scripts to ads that Super-PACs will then produce and run.
In many ways, the huge sum of political ads in today’s elections is a twofold result of the small-donor era post publicly funded campaigns, resulting in ads produced and run by campaigns themselves, and shadowy ad campaigns produced and run by Super-PACs with dubious funding.
It’s a very difficult problem to fix, with the proverbial cat out of the bag with spending, although some are trying.
In 2023, two groups of Democrats, totaling 121 Congresspeople, introduced legislation to overturn the Citizens United ruling. Both Democratic Senators and House Members introduced a constitutional amendment, along with 21 states and Washington D.C. The amendment would, “set reasonable campaign finance rules and limit corporate spending.”
With no bipartisan support for the amendment in states or Congress, it has very little hope of becoming law.
Constitutional amendments are, by design, very difficult to pass and the only way to directly supersede the Supreme Court’s ruling without the Court itself overturning their decision. Given that three of the four dissenting opinions in Citizens United have left the court, and one of whom was replaced by a conservative justice, is very unlikely.
There is no easy fix to the excess of money in politics, and consequently to the glut of political advertising in a legislative sense. Amazon has shown that it’s possible for political advertisements excluded from Thursday Night Football on Prime Video. Public pressure on broadcasting corporations seems to be a much easier direct action than a constitutional amendment, but given the amount of money that broadcasters make from these political advertisements seems almost as unlikely.
As political advertisements and spending saturate commercials, digital spaces, and any available advertising platform in between it seems the only reprieve, for the time being, is Thursday Night Football.
