Law Commons^™

Written Testimony Of Philip Hackney For The Hearing On Growth Of The Tax-Exempt Sector And The Impact On The American Political Landscape (U.S. House Ways & Means Subcommittee On Oversight, December 13, 2023), Philip Hackney

Testimony

In written testimony before the House Ways & Means Subcommittee on Oversight on December 13, 2023, Professor Hackney emphasized three points about tax-exempt organizations and politics: (1) a diverse nonprofit sector that fosters civic participation and engagement is a gem of the United States -- we should maintain that; (2) the IRS budget for Exempt Organizations continues to NOT be sufficient to ensure the laws are equally and fairly enforced; and (3) there are simple things the IRS could do to enforce the law that it is not doing.

Written Testimony Of Philip Hackney For The Hearing On Laws And Enforcement Governing The Political Activities Of Tax-Exempt Entities (U.S. Senate Finance Committee Subcommittee On Taxation And Irs Oversight, May 4, 2022), Philip Hackney

Testimony

Are tax laws and IRS enforcement up to the task of overseeing the tax issues associated with the political activities of tax-exempt organizations? Though the tax laws governing the tax-exempt realm are wanting, our overall legal structure is not bad. It is justifiable at least. Where we fall down as a nation in this space is in the enforcement. We do not allocate enough resources to this arena, and we do not institutionally offer the support necessary to enforce these laws. These failures do not favor one party over the other but favor those interests in the country with the …

On Foxes And Hedgehogs, Roger P. Alford

Journal Articles

This Article is about John Nagle’s many means to one great end. It will outline the many themes of his scholarship: (i) environmental law, (ii) statutory interpretation, (iii) constitutional law, (iv) nuisance and pollution, (v) election law and campaign finance, (vi) Christianity and the environment, and (vii) national parks. It will offer conclusions on how he used his scholarly interests as a means to pursue his overarching worldview.

Free Speech Has Gotten Very Expensive: Rethinking Political Speech Regulation In A Post-Truth World, John A. Barrett, Jr.

St. John's Law Review

(Excerpt)

Protecting free speech has been a foundational principle of American democracy since the nation’s founding. A core element of free speech has long been a prohibition on regulating political speech. The principle behind this protection holds that citizens are free to make whatever political pronouncements they wish and that their speech shall remain free from government suppression. Even within the limited exceptions to unfettered political speech, like defamation or libel, the speech is not banned but may merely result in liability. A premise underlying this view is that competing viewpoints, by being made available to us all, will allow …

Our Campaign Finance Nationalism, Eugene D. Mazo

Pepperdine Law Review

Campaign finance is the one area of election law that is most difficult to square with federalism. While voting has a strong federalism component—elections are run by the states and our elected officials represent concrete geographical districts—our campaign finance system, which is rooted in the First Amendment, almost entirely sidesteps the boundaries of American federalism. In so doing, our campaign finance system creates a tenuous connection between a lawmaker’s constituents, or the people who elect him, and the contributors who provide the majority of his campaign cash. The recent explosion of outside spending in American elections by wealthy individuals and …

Dark Money Darker? Irs Shutters Collection Of Donor Data, Philip Hackney

Articles

The IRS ended a long-time practice of requiring most nonprofits to disclose substantial donor names and addresses on the nonprofit annual tax return. It is largely seen as a battle over campaign finance rather than tax enforcement. Two of the nonprofits involved, social welfare organizations and business leagues, are referred to as “dark money” organizations because they allow individuals to influence elections while maintaining donor anonymity. Many in the campaign finance community are concerned that this change means wealthy donors can avoid campaign finance laws and have no reason to fear being discovered. In this Article, I focus on whether …

Democracy, Deference, And Compromise: Understanding And Reforming Campaign Finance Jurisprudence, Scott P. Bloomberg

Loyola of Los Angeles Law Review

In Citizens United, the Supreme Court interpreted the government’s interest in preventing corruption as being limited to preventing quid pro quo— cash-for-votes—corruption. This narrow interpretation drastically circumscribed legislatures’ abilities to regulate the financing of elections, in turn prompting scholars to propose a number of reforms for broadening the government interest in campaign finance cases. These reforms include urging the Court to recognize a new government interest such as political equality, to adopt a broader understanding of corruption, and to be more deferential to legislatures in defining corruption.

Building upon that body of scholarship, this Article begins with a descriptive …

‘‘Appearance Of Corruption’’: Linking Public Opinion And Campaign Finance Reform, Douglas M. Spencer, Alexander G. Theodoridis

Publications

At present, campaign finance regulations may only be justified if their primary purpose is to prevent quid pro quo corruption or the appearance of corruption. References to the ‘‘appearance of corruption’’ are ubiquitous in campaign finance decisions, yet courts have provided very little guidance about what the phrase means. In this article, we report findings from a broadly representative national survey in which we (1) directly ask respondents to identify behaviors that appear politically corrupt, and (2) indirectly measure perceptions of corruption using a novel paired-choice conjoint experiment asking respondents to choose which of two randomly generated candidates are more …

First Amendment (Un)Exceptionalism: A Comparative Taxonomy Of Campaign Finance Reform Proposals In The United States And United Kingdom, Lori A. Ringhand

Scholarly Works

There is an urgent conversation happening among the world’s democracies about how to respond to the combined threat of online electioneering and foreign interference in domestic elections. Despite the shadow such activities cast over the 2016 presidential election in the United States, the US has been largely absent from comparative discussions about how to tackle the problem. This is not just because of a recalcitrant president. The assumption that America’s “First Amendment Exceptionalism” – the idea that American freedom of expression law is simply too much of an outlier to warrant useful comparative consideration – is strong on both sides …

Dollars And Sense: A "New Paradigm" For Campaign Finance Reform?, Daniel A. Farber

Daniel A Farber

No abstract provided.

Keynote Address: Judging The Political And Political Judging: Justice Scalia As Case Study, Richard L. Hasen

Chicago-Kent Law Review

This is a revised version of a Keynote Address delivered at “The Supreme Court and American Politics,” a symposium held October 17, 2017 at the Chicago-Kent College of Law. In this Address, Professor Hasen considers through the lens of Justice Scalia’s opinions the role that views of the political process play, at least rhetorically, in how Supreme Court Justices decide cases. It focuses on Justice Scalia’s contradictory views on self-dealing and incumbency protection across a range of cases, comparing campaign finance on the one hand to partisan gerrymandering, voter identification laws, political patronage, and ballot access rules on the other. …

The Consequences Of Citizens United: What Do The Lawyers Say?, Ann Southworth

Chicago-Kent Law Review

This Essay examines a polarized world of advocacy over campaign finance regulation in the Roberts Court. It considers what lawyers who filed party and amicus briefs in Citizens United v. Federal Election Commission have to say about the consequences of the decision. It shows that the lawyers generally agree about the ruling’s direct consequences but strongly disagree about whether those consequences are good or bad for the country and what lessons the public should draw. This Essay also explores the competing frames that these lawyers bring to questions about money in politics and their competing perspectives about government and where …

Judicial Selection And The Search For Middle Ground, Charles G. Geyh

Articles by Maurer Faculty

This Article seeks to transcend perennial election versus appointment debates-including debates over campaign finance and the impact of "dark money"-by taking a closer look at why judicial selection is a contentious mess and discussing how it might be fixed. First, I present the case for elective and appointive systems. Second, I show that the arguments for each system are exaggerated or flawed.Third, I explore why it has been hard for proponents of each system to perceive and acknowledge those exaggerations and flaws, and propose ways to narrow the divide. Although the divide can and should be narrowed, I conclude that …

A Voice In The Wilderness: John Paul Stevens, Election Law, And A Theory Of Impartial Governance, Joshua A. Douglas, Cody S. Barnett

Law Faculty Scholarly Articles

Justice John Paul Stevens retired from the Supreme Court almost a decade ago and turned ninety-eight years old in April 2018. How should we remember his legacy on the Supreme Court? This Article places his legacy within his election law jurisprudence. Specifically, Justice Stevens provided a consistent theory, which we term “impartial governance,” that has had a lasting impact on the field. This theory undergirds Justice Stevens’s creation of the important Anderson-Burdick-Crawford balancing test that federal courts use to construe the constitutionality of laws that impact the right to vote, such as voter ID laws. It is part of his …

The Supreme Court, Judicial Elections, And Dark Money, Richard Briffault

Faculty Scholarship

Judges, even when popularly elected, are not representatives; they are not agents for their voters, nor should they take voter preferences into account in adjudicating cases. However, popularly elected judges are representatives for some election law purposes. Unlike other elected officials, judges are not politicians. But judges are policy-makers. Judicial elections are subject to the same constitutional doctrines that govern voting on legislators, executives, and ballot propositions. Except when they are not. The same First Amendment doctrine that protects campaign speech in legislative, executive, and ballot proposition elections applies to campaign speech in judicial elections – but not in quite …

Reforming Campaign Finance Reform: The Future Of Public Financing, Richard Briffault

Faculty Scholarship

In his Seventh Annual Message to Congress on December 3, 1907, President Theodore Roosevelt proposed what he acknowledged was a “very radical measure”: public funding of election campaigns. Roosevelt had previously urged a federal campaign disclosure law and restrictions on corporate contributions, and Congress had adopted a corporate contribution ban earlier that year. But Roosevelt warned that disclosure and contribution limits alone would not be enough to truly reform campaign finance. “[L]aws of this kind,” that is, regulations of private campaign money, “from their very nature are difficult of enforcement,” Roosevelt observed. They posed the “danger” they would be “obeyed …

Shareholder Proposal Settlements And The Private Ordering Of Public Elections, Sarah C. Haan

Sarah Haan

Reform of campaign finance disclosure has stalled in Congress and at various federal agencies, but it is steadily unfolding in a firm-by-firm program of private ordering. Today, much of what is publicly known about how individual public companies spend money to influence federal, state, and local elections—and particularly what is known about corporate “dark money”—comes from disclosures that conform to privately negotiated contracts.

The primary mechanism for this new transparency is the settlement of the shareholder proposal, in which a shareholder trades its rights under SEC Rule 14a-8—and potentially the rights of other shareholders—for a privately negotiated social policy commitment …

The New Front In The Clean Air Wars: Fossil-Fuel Influence Over State Attorneys General- And How It Might Be Checked, Eli Savit

Michigan Law Review

Review of Struggling for Air: Power and the "War On Coal" by Richard L. Revesz and Jack Leinke, and Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America by Paul Nolette.

Voting, Spending, And The Right To Participate, Robert Yablon

Northwestern University Law Review

While the law governing the electoral process has changed dramatically in the past decade, one thing has stayed the same: Courts and commentators continue to view voting in elections and spending on elections through distinct constitutional lenses. On the spending side, First Amendment principles guide judicial analysis, and recent decisions have been strongly deregulatory. On the voting side, courts rely on a makeshift equal protection-oriented framework, and they have tended to be more accepting of regulation. Key voting and spending precedents seldom cite each other. Similarly, election law scholars typically address voting and spending in isolation.

This Article challenges the …

Shareholder Proposal Settlements And The Private Ordering Of Public Elections, Sarah C. Haan

Scholarly Articles

Reform of campaign finance disclosure has stalled in Congress and at various federal agencies, but it is steadily unfolding in a firm-by-firm program of private ordering. Today, much of what is publicly known about how individual public companies spend money to influence federal, state, and local elections—and particularly what is known about corporate “dark money”—comes from disclosures that conform to privately negotiated contracts.

The primary mechanism for this new transparency is the settlement of the shareholder proposal, in which a shareholder trades its rights under SEC Rule 14a-8—and potentially the rights of other shareholders—for a privately negotiated social policy commitment …

Breaching A Leaking Dam?: Corporate Money And Elections, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

With a brief order issued at the end of its last term, the Supreme Court dramatically raised the stakes in Citizens United v. FEC. What many had predicted would be a case decided on narrow, technical grounds has now become a possible vehicle for overturning two key campaign finance precedents. By ordering re-argument and supplemental briefing on the issue of whether it should overrule either or both Austin v. Michigan Chamber of Commerce and the part of McConnell v. FEC which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, the Court signaled that …

Charities And Lobbying: Institutional Rights In The Wake Of Citizens United, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

One of the many aftershocks of the Supreme Court’s landmark decision in Citizens United v. FEC is that the decision may raise constitutional questions for the long-standing limits on speech by charities. There has been much scholarly attention both before and after that decision on the limit for election-related speech by charities, but much less attention has been paid to the relating lobbying speech limit. This article seeks to close that gap by exploring that latter limit and its continued viability in the wake of Citizens United. I conclude that while Citizens United by itself does not undermine the limit …

Disclosures About Disclosure, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

An often overlooked aspect of the Supreme Court’s recent decision in Citizens United v. FEC is the sharply contrasting factual accounts regarding disclosure of independent election-related spending. For eight of the Justices, such disclosure is constitutionally defensible because it enables voters to make informed decisions. For Justice Thomas, however, such disclosure is constitutionally suspect because of its potential to result in retaliation and related chilling of First Amendment speech in the form of financial contributions. The continuing importance of these contrasting narratives can be found not only in the pending Supreme Court case of Doe v. Reed, in which the …

Disclosures About Disclosure, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

An often overlooked aspect of the Supreme Court’s recent decision in Citizens United v. FEC is the sharply contrasting factual accounts regarding disclosure of independent election-related spending. For eight of the Justices, such disclosure is constitutionally defensible because it enables voters to make informed decisions. For Justice Thomas, however, such disclosure is constitutionally suspect because of its potential to result in retaliation and related chilling of First Amendment speech in the form of financial contributions. The continuing importance of these contrasting narratives can be found not only in the pending Supreme Court case of Doe v. Reed, in which the …

Charities And Lobbying: Institutional Rights In The Wake Of Citizens United, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

One of the many aftershocks of the Supreme Court’s landmark decision in Citizens United v. FEC is that the decision may raise constitutional questions for the long-standing limits on speech by charities. There has been much scholarly attention both before and after that decision on the limit for election-related speech by charities, but much less attention has been paid to the relating lobbying speech limit. This article seeks to close that gap by exploring that latter limit and its continued viability in the wake of Citizens United. I conclude that while Citizens United by itself does not undermine the limit …

Breaching A Leaking Dam?: Corporate Money And Elections, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

With a brief order issued at the end of its last term, the Supreme Court dramatically raised the stakes in Citizens United v. FEC. What many had predicted would be a case decided on narrow, technical grounds has now become a possible vehicle for overturning two key campaign finance precedents. By ordering re-argument and supplemental briefing on the issue of whether it should overrule either or both Austin v. Michigan Chamber of Commerce and the part of McConnell v. FEC which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, the Court signaled that …

The Coordination Fallacy, Michael D. Gilbert

Florida State University Law Review

This symposium piece tackles an important issue in campaign finance: the relationship between coordinated expenditures and corruption. Only one form of corruption, the quid pro quo, is constitutionally significant, and it has three logical elements: (1) an actor, such as an individual or corporation, conveys value to a politician, (2) the politician conveys value to the actor, and (3) a bargain links the two. Campaign finance regulations aim to deter quid pro quos by impeding the first or third element. Limits on contributions, for example, fight corruption by capping the value an actor can convey to a politician. What about …

Making Corporate Law More Communitarian: A Proposed Response To The Roberts Court's Personification Of Corporations, Robert M. Ackerman, Lance Cole

Brooklyn Law Review

Both Citizens United and Hobby Lobby are notable for the Roberts Court’s personification of the corporation. In Citizens United, the United States Supreme Court expanded corporate speech rights in a political context; in Hobby Lobby, it accorded religious rights to corporations in an unprecedented manner. This article explains how the Court’s expansion of corporate personification has ignored both traditional corporate law doctrine regarding shareholder primacy and the fundamental distinction in corporate law between the corporate entity and the shareholders who control it.

The article takes a communitarian approach to corporate law analysis, recognizing that corporations play useful roles …

Contingent Constitutionality, Legislative Facts, And Campaign Finance Law, Michael T. Morley

Florida State University Law Review

Many of the Supreme Court’s important holdings concerning campaign finance law are not pure matters of constitutional interpretation. Rather, they are “contingent” constitutional determinations: the Court’s conclusions rest in substantial part on legislative facts about the world that the Court finds, intuits, or assumes to be true. While earlier commentators have recognized the need to improve legislative factfinding by the Supreme Court, other aspects of its treatment of legislative facts—particularly in the realm of campaign finance—require reform as well.

Stare decisis purportedly insulates the Court’s purely legal holdings and interpretations from future challenge. Factually contingent constitutional rulings should, in contrast, …

Contingent Constitutionality, Legislative Facts, And Campaign Finance Law, Michael T. Morley

Scholarly Publications

Many of the Supreme Court's important holdings concerning campaign finance law are not pure matters of constitutional interpretation. Rather, they are "contingent" constitution- al determinations: the Court's conclusions rest in substantial part on legislative facts about the world that the Court finds, intuits, or assumes to be true. While earlier commentators have recognized the need to improve legislative factfinding by the Supreme Court, other aspects of its treatment of legislative facts-particularly in the realm of campaign finance- require reform as well. Stare decisis purportedly insulates the Court's purely legal holdings and interpretations from future challenge. Factually contingent constitutional rulings should, …