Law Commons^™

The Death Of Non-Resident Contribution Limit Bans And The Birth Of The New Small, Swing State, George J. Somi

William & Mary Bill of Rights Journal

New Hampshire’s 1st Congressional District race in 2018 featured an eye-popping number: 96.7. That figure represents the percentage of candidate Maura Sullivan’s individual contributions derived from out-of-state, non–New Hampshire donors. In August 2018, of the $1.37 million USD of individual contributions that Sullivan had raised, only 3.3%—$46,648 USD—originated from in-state contributors. Sullivan had received individual donations amounting to $497,405 USD from Boston, $216,359 USD from New York City, $101,562 USD from the Washington, D.C. metropolitan area, and $92,371 USD from San Francisco.

In nearby Maine, campaign finance reports filed on October 15, 2019, with the Federal Election Commission (FEC) indicate …

A Better Financing System? The Death And Possible Rebirth Of The Presidential Nomination Public Financing Program, Richard Briffault

Faculty Scholarship

In the spring of 1974, the 31-year-old junior Senator from Delaware, Joseph R. Biden, Jr., published a law review article in which he decried the traditional system of privately financed election campaigns. Private financing, Senator Biden contended, “affords certain wealthy individuals or special interest groups the potential for exerting a disproportionate influence over both the electoral mechanism and the policy-making processes of the government.” Moreover, Biden urged, private funding poses an obstacle to the candidacies of “individuals of moderate means” and so was at odds with the “concept of American democracy [that] presumes that all citizens, regardless of access to …

The Constitutionality Of The Appointment Of Copyright Royalty Judges By The Librarian Of Congress Under The Appointments Clause, John P. Strohm

Journal of Intellectual Property Law

No abstract provided.

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 …

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 …

Separation Of Powers, Executive Authority, And Suspension Of Disbelief, Nat Stern

Scholarly Publications

The growth of federal executive power to a magnitude not foreseen at the Constitution's adoption has been largely enabled by favorable rulings by the Supreme Court. Though not invariably sustaining executive prerogative, the Court has rejected challenges to executive power on a scale sufficient to afford the Executive enormous latitude to carry out and shape federal policy. In assessing whether the Executive has overstepped its bounds in particular cases, scholars and Justices alike frequently debate whether a formalist or functional approach more faithfully implements the Constitution's system of separation of powers. Transcending these two schools of interpretation, however, is a …

Financing Corporate Elections, Andrew A. Schwartz

Publications

Elections for corporate directorships have become more competitive and expensive in recent years, raising important questions of corporate campaign finance, such as whether an insurgent campaign must disclose the source of its funding and whether a director is permitted to receive third-party compensation during her term in office (known as a "golden leash"). These present novel and unanswered issues of corporate law, but many analogous issues have been resolved in the political sphere using the First Amendment and a well-developed line of Supreme Court case law beginning with Buckley v. Valeo and continuing through Citizens United and other key precedents. …

A Symposium: The Legal And Polticial Implications Of Buckley V. Valeo (1976), Christopher P. Banks, John C. Green

Akron Law Review

One of the most vexing issues in constitutional jurisprudence concerns the political regulation of money and its democratic implications. The resolution of the constitutional question for democracy involves striking a balance between two competing interests: the protection of political liberty under the First Amendment and the legitimate interest government has in preventing money from having a corrosive or corrupting effect on the political system. With its landmark ruling in Buckley v. Valeo, some say that the Supreme Court successfully reconciled these interests and, in fact, strongly preserved the basic ideal of American freedom. Different commentators, however, maintain that the Supreme …

The Price Of Corruption, Usha Rodrigues

Scholarly Works

The Supreme Court recently held that campaign contributions under $5200 do not create a “cognizable risk of corruption.” It was wrong. This Essay describes a nexus of timely contributions and special-interest legislation. In the most noteworthy case, a CEO made a first-time $1000 donation to a member of Congress. The next day that representative introduced a securities bill tailored to the interests of the CEO’s firm.

Armed with this real-world account of how small-dollar campaign contributions coincided with favorable legislative action, the Essay reads McCutcheon v. Federal Election Commission with a critical eye. In McCutcheon the Supreme Court assumed that …

J. Skelly Wright's Democratic First Amendment, Johanna Kalb

Articles

No abstract provided.

The Price Of Corruption, Usha Rodrigues

Scholarly Works

The Supreme Court recently held that campaign contributions under $5200 do not create a “cognizable risk of corruption.” It was wrong. This Essay describes a nexus of timely contributions and special-interest legislation. In the most noteworthy case, a CEO made a first-time $1000 donation to a member of Congress. The next day that representative introduced a securities bill tailored to the interests of the CEO’s firm.

Armed with this real-world account of how small-dollar campaign contributions coincided with favorable legislative action, the Essay reads McCutcheon v. Federal Election Commission with a critical eye. In McCutcheon the Supreme Court assumed that …

A Constitutional Amendment Allowing Broader Campaign-Finance Reform Would Not Criminalize Political Satire., Christopher W. Bell

St. Mary's Law Journal

Campaign finance remains a perennial issue, because contributions and expenditures define the political campaigns which shape our democracy. While a majority of the American public supports limiting campaign spending, campaign finance reform remains near the bottom of most voters’ priorities. Reformers have called the lack of the public’s interest “[o]ne of the persistent mysteries of campaign finance reform.” Citizens United v. F.E.C. focused national attention on the role of money in politics. Citizens United evoked such strong reactions, because it represents the two competing versions of the concept of freedom of speech: “free speech as serving liberty” and “free speech …

Appellate Division, Third Department, Avella V. Batt, Danielle D'Abate

Touro Law Review

No abstract provided.

Officers Under The Appointments Clause, John Plecnik

Law Faculty Articles and Essays

Much ink has been spilled, and many keyboards worn, debating the definition of "Officers of the United States" under the Appointments Clause of Article II, Section 2, Clause 2 of the Constitution. The distinction between Officers and employees is constitutionally and practically significant, because the former must be appointed by the President, with or without the advice and consent of the Senate, Courts of Law, or Heads of Departments. In contrast, employees may be hired by anyone in any manner.

Appointments Clause controversies are triggered when a government official who was hired as an employee is accused of unconstitutionally wielding …

Super Pac Contributions, Corruption, And The Proxy War Over Coordination, Richard L. Hasen

Schmooze 'tickets'

No abstract provided.

Hobby Lobby And The Pathology Of Citizens United, Ellen D. Katz

Articles

Four years ago, Citizens United v. Federal Election Commission held that for-profit corporations possess a First Amendment right to make independent campaign expenditures. In so doing, the United States Supreme Court invited speculation that such corporations might possess other First Amendment rights as well. The petitioners in Conestoga Wood Specialties Corp. v. Sebelius are now arguing that for-profit corporations are among the intended beneficiaries of the Free Exercise Clause and, along with the respondents in Sebelius v. Hobby Lobby Stores, that they also qualify as “persons” under the Religious Freedom Restoration Act (RFRA). Neither suggestion follows inexorably from Citizens United, …

To The Victor Goes The Toil -- Remedies For Regulated Parties In Separation-Of-Powers Litigation, Kent H. Barnett

Scholarly Works

The U.S. Constitution imposes three key limits on the design of federal agencies. It constrains how agency officers are appointed, the extent of their independence from the President, and the range of issues that they can decide. Scholars have trumpeted the importance of these safeguards with soaring rhetoric. And the Supreme Court has permitted regulated parties to vindicate these safeguards through implied private rights of action under the Constitution. Regulated parties, for their part, have been successfully challenging agency structure with increased frequency. At the same time, regulated parties, courts, and scholars have largely ignored the practical question of “structural …

Voluntary Campaign Finance Reform, John C. Nagle

John Copeland Nagle

No abstract provided.

The Constitutional Logic Of Campaign Finance Regulation, Samuel Issacharoff

Pepperdine Law Review

This essay explores the potential implications of the creation of a distinct "election period" through the BCRA reforms to campaign finance law. The idea of a separate set of rights of expression during the immediate pre-election period is a relative newcomer to American law, but is a central feature of campaign finance law in other countries. The creation of a defined election period is the underpinning of strong restrictions on political speech in countries such as Britain, and is currently the source of tension under European law. Recent decisions of the European Court of Human Rights, most notably in Bowman …

The Gratuities Debate And Campaign Reform – How Strong Is The Link?, George D. Brown

George D. Brown

The federal gratuities statute, 18 USC § 201(c), continues to be a source of confusion and contention. The confusion stems largely from problems of draftsmanship within the statute, as well as uncertainty concerning the relationship of the gratuities offense to bribery. Both offenses are contained in the same statute; the former is often seen as a lesser-included offense variety of the latter. The controversy stems from broader concerns about whether the receipt of gratuities by public officials, even from those they regulate, should be a crime. The argument that such conduct should not be criminalized can be traced to, and …

Citizens United And The Illusion Of Coherence, Richard L. Hasen

Michigan Law Review

The self-congratulatory tone of the majority and concurring opinions in last term's controversial Supreme Court blockbuster, Citizens United v. Federal Election Commission, extended beyond the trumpeting of an absolutist vision of the First Amendment that allows corporations to spend unlimited sums independently to support or oppose candidates for office. The triumphalism extended to the majority's view that it had imposed coherence on the unwieldy body of campaign finance jurisprudence by excising an "outlier" 1990 opinion, Austin v. Michigan Chamber of Commerce, which had upheld such corporate limits, and parts of a 2003 opinion, McConnell v. FEC, extending Austin to unions …

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

Journal Articles

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 …

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 …

Constitutional Law—Campaign Finance Law & The First Amendment—Can You See The Light?: Illuminating Precedent And Creating A New Tier Of Judicial Scrutiny For Campaign Finance Laws. Randall V. Sorrell, 126 S. Ct. 2479 (2006)., Christopher A. Mcnulty

University of Arkansas at Little Rock Law Review

No abstract provided.

Defining Democracy: The Supreme Court's Campaign Finance Dilemma, Lori A. Ringhand

Scholarly Works

On December 10, 2003 the United States Supreme Court issued its decision in McConnell v. FEC. In McConnell, the Court was asked to determine the constitutionality of the Bipartisan Campaign Reform Act ("BCRA"). A divided Court, in a deeply fractured decision in which six justices wrote individual opinions, upheld the major provisions of the legislation. Yet despite the almost 300 pages of reasoning provided by the Court, and a voluminous record developed by the district court, the Justices could not agree on what purportedly is the central issue in campaign finance law: whether the challenged regulations were necessary …

The Campain-Finance Crucible: Is Laissez Fair?, Jamin B. Raskin

Michigan Law Review

The 2001 passage of the Bipartisan Campaign Reform Act ("BCRA"), popularly known as "McCain-Feingold," set the stage for a momentous constitutional conflict in the United States Supreme Court in the 2003-04 Term. Among other things, the new legislation bans "soft money" contributions to the national political parties by corporations, labor unions, and individuals; prohibits state parties that are authorized to accept such contributions to spend the proceeds on activities related to federal elections; forbids federal candidates to participate in raising soft money; doubles the amount of "hard money" an individual can contribute in a federal election from $1,000 to $2,000 …

Globalization In A Fallen World: Redeeming Dust, Emily A. Hartigan

Faculty Articles

The paradigm used in discussions about academic globalization is the “rational” discourse of the late twentieth century. This paradigm is manifested in university and political-cultural commentary in the United States and Great Britain. The term “globalization” immediately evokes a paradox. The paradox of the globe is it risks confusing itself with the universe. One key axis of of the paradox is between “good” globalization and “bad” globalization, another between the “is” and the “ought” of globalization.

A world-wide culture, democracy, or economy is inherently fallen. Attending to the forces that would pull us back together is one key to overcome …

Constitutional Law: State Campaign Contribution Limits: Nixon V. Shrink Missouri Government Pac: An Abridgment Of Freedom In The Name Of Democracy, Richard J. Baker

Oklahoma Law Review

No abstract provided.

Voluntary Campaign Finance Reform, John C. Nagle

Journal Articles

Any effort to achieve voluntary campaign finance reform raises two questions: Is it really voluntary, and does it really work? In Part I of this Essay, I examine the voluntariness of "voluntary" campaign finance reform. Agreements like that reached by Clinton and Lazio last year—what I term "purely voluntary agreements"—satisfy most legal tests for voluntariness. By contrast, the voluntariness of spending limits and other campaign restrictions that are imposed as a condition for receiving government funding of a political campaign—what I term "governmentally induced agreements"—is more doubtful. The extant jurisprudence recognizes that Buckley prohibits governmental actions that are more coercive …

Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review Vs. Democracy In Comparative Perspective, Ran Hirschl

University of Richmond Law Review

For the [past] two centuries, the Constitution [has been] as central to American political culture as the New Testament was to medieval Europe. Just as Milton believed that "all wisdom is enfolded" within the pages of the Bible, all good Americans, from the National Rifle Association to the ACLU, have believed no less of this singular document.