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Reforming Campaign Finance Reform: The Future Of Public Financing, Richard Briffault Jan 2018

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 …


The Supreme Court, Judicial Elections, And Dark Money, Richard Briffault Jan 2018

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 …


Transparency's Ideological Drift, David E. Pozen Jan 2018

Transparency's Ideological Drift, David E. Pozen

Faculty Scholarship

In the formative periods of American "open government" law, the idea of transparency was linked with progressive politics. Advocates of transparency understood themselves to be promoting values such as bureaucratic rationality, social justice, and trust in public institutions. Transparency was meant to make government stronger and more egalitarian. In the twenty-first century, transparency is doing different work. Although a wide range of actors appeal to transparency in a wide range of contexts, the dominant strain in the policy discourse emphasizes its capacity to check administrative abuse, enhance private choice, and reduce other forms of regulation. Transparency is meant to make …


Contingent Constitutionality, Legislative Facts, And Campaign Finance, Michael T. Morley Jan 2016

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

Faculty Scholarship

No abstract provided.


Review Of Corruption In America: From Benjamin Franklin's Snuff Box To Citizens United By Zephyr Teachout, Robert L. Tsai Jan 2015

Review Of Corruption In America: From Benjamin Franklin's Snuff Box To Citizens United By Zephyr Teachout, Robert L. Tsai

Faculty Scholarship

This is a review of Zephyr Teachout's book on the anticorruption principle, "Corruption in America" (Harvard 2014).


The Uncertain Future Of The Corporate Contribution Ban, Richard Briffault Jan 2015

The Uncertain Future Of The Corporate Contribution Ban, Richard Briffault

Faculty Scholarship

Concern about the role of corporate money in democracy has been a longstanding theme in American politics. In the late nineteenth century, the states began to adopt laws restricting the use of corporate funds in elections. The first permanent federal campaign finance law – the Tillman Act of 1907 – targeted corporations by prohibiting federally-chartered corporations from making contributions in any election and prohibiting all corporations from making contributions in federal elections. Subsequently amended, continued, and strengthened by the Federal Corrupt Practices Act of 1925, the Taft-Hartley Act of 1947, the Federal Election Campaign Act of 1971, and the Bipartisan …


Partisan Federalism, Jessica Bulman-Pozen Jan 2014

Partisan Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Among the questions that vex the federalism literature are why states check the federal government and whether Americans identify with the states as well as the nation. This Article argues that partisanship supplies the core of an answer to both questions. Competition between today’s ideologically coherent, polarized parties leads state actors to make demands for autonomy, to enact laws rejected by the federal government, and to fight federal programs from within. States thus check the federal government by channeling partisan conflict through federalism’s institutional framework. Partisanship also recasts the longstanding debate about whether Americans identify with the states. Democratic and …


The Anxiety Of Influence: The Evolving Regulation Of Lobbying, Richard Briffault Jan 2014

The Anxiety Of Influence: The Evolving Regulation Of Lobbying, Richard Briffault

Faculty Scholarship

Lobbying has long been a source of anxiety. As early as the mid-nineteenth century courts expressed concern about the “designing and corrupt men” who sought to wield “secret influence.” Lobbying is a multi-billion dollar business today, but the association of “lobbying” with improper influence is so strong that the American League of Lobbyists – the lobbyists’ trade association – recently renamed itself to drop the word “lobbyist.” Yet, courts have also long recognized that people have a legitimate interest in being able to influence government action, and that they may need to be able to hire agents to help them, …


Coordination Reconsidered, Richard Briffault Jan 2013

Coordination Reconsidered, Richard Briffault

Faculty Scholarship

At the heart of American campaign finance law is the distinction drawn by the Supreme Court in Buckley v. Valeo between contributions and expenditures. According to the Court, contributions may be limited because they pose the dangers of corruption and the appearance of corruption, but expenditures pose no such dangers and therefore may not be limited. The distinction between the two types of campaign spending turns not on the form – the fact that contributions proceed from a donor to a candidate, while expenditures involve direct efforts to influence the voters – but on whether the campaign practice implicates the …


Defining Corruption And Constitutionalizing Democracy, Deborah Hellman Jan 2012

Defining Corruption And Constitutionalizing Democracy, Deborah Hellman

Faculty Scholarship

The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on giving and spending money in connection with elections only when they serve to avoid corruption or its appearance. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides have missed the more …


Super Pacs, Richard Briffault Jan 2012

Super Pacs, Richard Briffault

Faculty Scholarship

The most striking campaign finance development since the Supreme Court's decision in Citizens United v. FEC in January 2010 has not been an upsurge in corporate and union spending, as might have been expected from a decision invalidating the decades-old laws barring such expenditures. Instead, federal election campaigns have been marked by the emergence of an entirely new campaign vehicle, which uses – but is not primarily dependent on – corporate or union funds, and which threatens to upend the federal campaign regulatory regime in place since 1974.

The 2010 election cycle witnessed the birth of the "Super PAC" – …


On Dejudicializing American Campaign Finance Law, Richard Briffault Jan 2011

On Dejudicializing American Campaign Finance Law, Richard Briffault

Faculty Scholarship

The Supreme Court dominates American campaign finance law. Citizens United v. Federal Election Commission dramatically illustrates this basic truth, but Citizens United is nothing new. The Court has been the preeminent force in shaping and constraining our campaign finance laws since Buckley v. Valeo, and the Court's role as arbiter of what regulations may or may not be enforced only continues to grow. The President of the United States can wag his finger at the Court during the State of the Union Address and denounce its Citizens United ruling to the Justices' faces on national television, but even he …


Corporations, Corruption, And Complexity: Campaign Finance After Citizens United, Richard Briffault Jan 2011

Corporations, Corruption, And Complexity: Campaign Finance After Citizens United, Richard Briffault

Faculty Scholarship

Few campaign finance cases have drawn more public attention than the Supreme Court's decision in Citizens United v. FEC. The Court's invalidation of a sixty-year-old federal law – and comparable laws in two dozen states – banning corporations from engaging in independent spending in support of or opposition to candidates strongly affirms the right of corporations to engage in electoral advocacy. Critics – and most, albeit not all, of both the popular and academic commentary on the decision has been critical – have condemned the idea that corporations enjoy the same rights to spend on elections as natural persons. …


Davis V. Fec: The Roberts Court's Continuing Attack On Campaign Finance Reform, Richard Briffault Jan 2009

Davis V. Fec: The Roberts Court's Continuing Attack On Campaign Finance Reform, Richard Briffault

Faculty Scholarship

In Davis v. FEC, decided on the last day of the October 2007 Term, a closely divided Supreme Court invalidated the so-called Millionaires' Amendment, which was a provision added to the Federal Election Campaign Act ("FECA") as part of the Bipartisan Campaign Reform Act ("BCRA") of 2002 to make it easier for Senate and House candidates to raise private contributions when they run against an opponent who uses a substantial amount of personal wealth to pay for his or her campaign. From the reform perspective, the loss of the Millionaires' Amendment was not of great moment. The Amendment was …


Lobbying And Campaign Finance: Separate And Together, Richard Briffault Jan 2008

Lobbying And Campaign Finance: Separate And Together, Richard Briffault

Faculty Scholarship

The relationship between lobbying and campaign finance is complex, contested, and changing. Lobbying and campaign finance are two important forms of political activity that combine money and communication in ways that have significant implications for democratic self-government. The two practices frequently interact and reinforce each other, with individuals, organizations, and interest groups deploying both lobbyists and campaign money to advance their goals. Congress, in 2007, for the first time explicitly recognized the intersection of campaign finance and lobbying when it adopted legislation specifically regulating the campaign finance activities of lobbyists. At roughly the same time, several of the leading candidates …


Can Congress Authorize The Opponents Of Self-Financed Candidates To Receive Extra-Large Contributions?, Richard Briffault Jan 2008

Can Congress Authorize The Opponents Of Self-Financed Candidates To Receive Extra-Large Contributions?, Richard Briffault

Faculty Scholarship

Is the so-called Millionaires’ Amendment, which permits federal candidates who are running against self-funded opponents to receive contributions significantly above the standard federal statutory ceiling constitutional?

Federal law caps contributions to federal candidates, but the Supreme Court has ruled that limits on how much money a candidate can contribute to his or her own campaign are unconstitutional. This case tests the 2002 Millionaires’ Amendment, which enables candidates for Congress running against self-financing opponents to obtain contributions well above the ordinary statutory ceiling and also imposes additional reporting requirements on self-funding candidates.


The 527 Problem ... And The Buckley Problem, Richard Briffault Jan 2005

The 527 Problem ... And The Buckley Problem, Richard Briffault

Faculty Scholarship

In the world of campaign finance, 2004 was without a doubt the year of the 527 organization. No other aspect of campaign financing received as much press coverage or public attention as the rise of the 527s. Expenditures by 527s – named after the section of the Internal Revenue Code under which they are organized – active in federal elections amounted to at least $405 million, accounting for more than one-tenth of total federal election spending and perhaps twenty to twenty-five percent of spending in the presidential campaign. Federal Election Commission ("FEC") Chairman Scott E. Thomas recently observed that "[there …


The Return Of Spending Limits: Campaign Finance After Landell V. Sorrell, Richard Briffault Jan 2005

The Return Of Spending Limits: Campaign Finance After Landell V. Sorrell, Richard Briffault

Faculty Scholarship

On August 18, 2004, the United States Court of Appeals for the Second Circuit held that the First Amendment, as interpreted by the Supreme Court in Buckley v. Valeo, does not preclude mandatory limitations on campaign expenditures.In Landell v. Sorrell, the court concluded that limitations imposed by the state of Vermont on candidate spending in state election campaigns are "supported by [the state's] compelling interests in safeguarding Vermont's democratic process from 1) the corruptive influence of excessive and unbridled fundraising and 2) the effect that perpetual fundraising has on the time of candidates and elected officials." To …


Reforming Campaign Finance Reform: A Review Of Voting With Dollars, Richard Briffault Jan 2003

Reforming Campaign Finance Reform: A Review Of Voting With Dollars, Richard Briffault

Faculty Scholarship

On March 27, 2002, President George W. Bush signed the Bipartisan Campaign Reform Act of 2002 ("BCRA") into law. The culmination of a six-year legislative and political struggle, BCRA works the most comprehensive change in federal campaign finance law in nearly three decades. BCRA addresses a broad range of issues, including soft money, issue-advocacy advertising, fundraising on federal property, campaign activities of foreign nationals, and penalties for violation of campaign finance laws. Enacted in the face of intense political opposition, BCRA, if it stands up in court, is a significant reform achievement.

Or is it? BCRA closely follows the main …


What Did They Do And What Does It Mean? The Three-Judge Court's Decision In Mcconnell V. Fec And The Implications For The Supreme Court, Richard Briffault Jan 2003

What Did They Do And What Does It Mean? The Three-Judge Court's Decision In Mcconnell V. Fec And The Implications For The Supreme Court, Richard Briffault

Faculty Scholarship

My role at this symposium is to provide a brief overview of the three-judge court's decision in McConnell v. FEC, review the opinions, piece together what the court actually decided, and see how the Bipartisan Campaign Reform Act of 2002 ("BCRA") now stands. I will try to do that briefly, while giving a few general comments about what the court's opinions tell us about the state of campaign finance law today. As a preliminary matter, the three-judge court's opinions provide us with two radically different world views – almost two different intellectual universes – for thinking about campaign finance …


Campaign Finance Disclosure And Section 527 Of The Code: A Look At The District Court's Opinion In National Federation Of Republican Assemblies, Donald B. Tobin Oct 2002

Campaign Finance Disclosure And Section 527 Of The Code: A Look At The District Court's Opinion In National Federation Of Republican Assemblies, Donald B. Tobin

Faculty Scholarship

This report examines the decision of the U.S. District Court for the Southern District of Alabama in National Federation of Republican Assemblies v. United States, which dealt with section 527 political organizations.


The Future Of Reform: Campaign Finance After The Bipartisan Campaign Reform Act Of 2002, Richard Briffault Jan 2002

The Future Of Reform: Campaign Finance After The Bipartisan Campaign Reform Act Of 2002, Richard Briffault

Faculty Scholarship

On March 27, 2002, President George W. Bush signed the Bipartisan Campaign Reform Act of 2002 ("BCRA" or "the Act") into law. The culmination of a protracted six-year legislative and political struggle, BCRA is the most significant change in federal campaign finance law since the early 1970s, when the Federal Election Campaign Act ("FECA") of 1971 and FECA Amendments of 1974 were adopted. The Act addresses a broad range of campaign finance issues, including fundraising on federal property, contributions by foreign nationals, donations to the presidential inauguration committee, electronic filing and Internet access to campaign disclosure reports, and penalties for …


The Contested Right To Vote, Richard Briffault Jan 2002

The Contested Right To Vote, Richard Briffault

Faculty Scholarship

For those who believe the United States is a representative democracy with a government elected by the people, the events of late 2000must have been more than a little disconcerting. In the election for our most important public office – our only truly national office – the candidate who received the most popular votes was declared the loser while his second place opponent, who had received some 540,000 fewer votes, was the winner. This result turned on the outcome in Florida, where approximately 150,000 ballots cast were found not to contain valid votes. Further, due to flaws in ballot design, …


Nixon V. Shrink Missouri Government Pac: The Beginning Of The End Of The Buckley Era?, Richard Briffault Jan 2001

Nixon V. Shrink Missouri Government Pac: The Beginning Of The End Of The Buckley Era?, Richard Briffault

Faculty Scholarship

In Nixon v. Shrink Missouri Government PAC, the Supreme Court emphatically reaffirmed a key element of the campaign finance doctrine first articulated in Buckley v. Valeo a quarter-century earlier that governments may, consistent with the First Amendment, impose limitations on the size of contributions to election campaigns. Shrink Missouri was significant because the Eighth Circuit decision reversed by the Supreme Court had sought to strengthen the constitutional protection provided to contributions and had invalidated limitations on donations to Missouri state candidates that were actually higher than the limits on donations to federal candidates that the Supreme Court had previously …


The Political Parties And Campaign Finance Reform, Richard Briffault Jan 2000

The Political Parties And Campaign Finance Reform, Richard Briffault

Faculty Scholarship

Recent campaign finance innovations of the major political parties have blown large and widening holes in federal campaign finance regulation. The relationship between parties and candidates also challenges the basic doctrinal categories of campaign finance law. The Constitution permits regulation of campaign finances to deal with the danger of corruption. But some judges and commentators have argued that the parties present no danger of corruption. This Article finds that, although parties play a positive role in funding campaigns, certain party practices raise the specter of corruption in the constitutional sense. Moreover, due to the close connection between parties and candidates, …


Public Funding And Democratic Elections, Richard Briffault Jan 1999

Public Funding And Democratic Elections, Richard Briffault

Faculty Scholarship

Our existing federal campaign finance system – the product of Watergate Era legislation and the Supreme Court's 1976 decision in Buckley v. Valeo – is in a state of disarray. The system is no longer capable of accomplishing the goals pursued by Congress and embraced by the Court a quarter-century ago: full disclosure of the sources of campaign money; limitations on large contributions by individuals; prohibitions on the use of corporate and union treasury funds; and voluntary, partial public funding, with spending limits, in the Presidential election. Indeed, the current law may actually have negative consequences, with unindexed contribution limits …


Issue Advocacy: Redrawing The Elections/Politics Line, Richard Briffault Jan 1999

Issue Advocacy: Redrawing The Elections/Politics Line, Richard Briffault

Faculty Scholarship

In the closing weeks of the 1996 election, Montana's airwaves were flooded with the following television advertisement:

Who is Bill Yellowtail? He preaches family values, but he took a swing at his wife. Yellowtail's explanation? He 'only slapped her,' but her nose was broken. He talks law and order, but is himself a convicted criminal. And though he talks about protecting children, Yellowtail failed to make his own child support payments, then voted against child support enforcement. Call Bill Yellowtail and tell him we don't approve of his wrongful behavior. Call (406) 443-3620.

The anti-Yellowtail ad, financed by an organization …


Campaign Finance: The Impact On The Legislative And Regulatory Process, John B. Anderson Jan 1998

Campaign Finance: The Impact On The Legislative And Regulatory Process, John B. Anderson

Faculty Scholarship

During a Senate campaign more than four decades ago, revelations of a $5,000 contribution offer to Senator Karl Mundt of South Dakota precipitated a Senate investigation. At that time, Congress was considering legislation dealing with the regulation of natural gas. The discovery of the contribution offer ignited such a furor that it prompted President Eisenhower to declare he would veto any bill relating to natural gas regulation enacted under a cloud of suspicion. He carried out his threat, and it was another decade before Congress finally enacted legislation deregulating natural gas at the wellhead. Since that time, as the costs …


Campaign Finance, The Parties And The Court: A Comment On Colorado Republican Federal Campaign Committee V. Federal Elections Commission, Richard Briffault Jan 1997

Campaign Finance, The Parties And The Court: A Comment On Colorado Republican Federal Campaign Committee V. Federal Elections Commission, Richard Briffault

Faculty Scholarship

Last term, In Colorado Republican Federal Campaign Committee v. Federal Election Commission, the Supreme Court considered a direct attack on the constitutionality of the Federal Election Campaign Act's ("FECA") limits on political party expenditures. Colorado Republican was the Court's first campaign finance case in six years and the first in which the four Justices appointed by Presidents Bush and Clinton had an opportunity to participate. Colorado Republican was also the first case in the twenty-year regime of Buckley v. Valeo concerned with the constitutionality of restrictions on parties. Coming at a time of rising public concern, increased legislative activity, …


Ballot Propositions And Campaign Finance Reform, Richard Briffault Jan 1996

Ballot Propositions And Campaign Finance Reform, Richard Briffault

Faculty Scholarship

For more than two decades, law and policy in the area of campaign finance reform have been framed by the conflict between the norms of promoting political equality and protecting political participation. Viewing campaign finance as a basic component of political activity, the Supreme Court has generally given political participation priority over equality and has invalidated reforms that would limit spending in order to promote equality. The Court, however, has sustained some restrictions on campaign finance activities of candidates, political parties, and individuals and groups who work with these political professionals. In effect, concern about the capacity of private donations …