Election Law Commons^™

Restoring Public Trust In Elections: An Empirical Study Of How Campaign Finance Reform Can Restore Public Trust In Elections, Matthew D. Kim

Texas A&M Law Review

The American public has become deeply distrustful of elections. This distrust is partly due to Supreme Court decisions curtailing campaign finance restrictions, on First Amendment grounds, to spending that creates an appearance of quid pro quo corruption. The Court’s reasoning assumes that, although the government has an interest in protecting the public’s trust in elections, campaign spending does not pose a threat to the public’s trust absent the appearance of quid pro quo corruption. However, it is unclear if campaign spending undermines the public’s trust in elections through means other than the appearance of quid pro quo corruption. If it …

Voter Confidence And The World Of Appearances: Where Campaign-Finance And Election-Administration Law Collide, Kishore S. Chundi

Fordham Law Voting Rights and Democracy Forum

Scholarship on election-administration measures (like voter ID laws) and campaign-finance laws has been siloed. American political affiliations, in their current form, dictate that liberals support campaign-finance restrictions and oppose voter ID laws, and vice versa for conservatives. But the Court has analyzed both measures using the similarly odd lens of appearances—the perception of electoral integrity in voter ID cases and the perception of corruption in campaign-finance cases. Yet despite the nearly identical justifications for campaign-finance and election-administration measures, the Court has treated these claims quite differently. Election-administration laws receive nearly automatic deference, whereas campaign-finance laws are routinely overturned. This Article …

Federal Election Commission And Indiana Secretary Of State Campaign Finance Information Resoures, Bert Chapman

Libraries Faculty and Staff Presentations

This presentation covers campaign finance information resources produced by the Federal Election Commission (FEC) and Indiana Secretary of State. It describes how these agencies began, details how they oversee and regulate U.S. federal and Indiana state elections, and documents contributions made by individuals, organizations, political parties, and political action committees to individual candidates and organizations. Reporting documentation on these election races is also included.

The Surprising Survival – So Far – Of The Corporate Contribution Ban, Richard Briffault

Faculty Scholarship

In Citizens United v. Federal Election Commission, the Supreme Court invalidated the longstanding ban on the expenditure of corporate funds in federal election campaigns. In so doing, the Court dismissed outright an argument that had long been the foundation for the restriction of corporate money in election campaigns — that, due to the “substantial aggregations of wealth amassed by the special advantages which go with the corporate form[,]” corporate money poses a distinct threat to the integrity of democracy. Instead, viewing corporations as essentially “associations of citizens,” Citizens United determined that “the First Amendment does not permit Congress to …

Yes, Trump’S Pacs Really Can Pay His Legal Fees, Richard Briffault

Faculty Scholarship

Campaign finance data released at the end of January 2024 revealed that Save America, a political action committee founded and controlled by former President Donald Trump, spent more than US$50 million in 2023 on legal fees resulting from Trump’s multiple criminal and civil cases.

OpenSecrets, a nonpartisan nonprofit tracking campaign funds, found that other Trump-aligned organizations also paid a combined $10 million in additional legal fees for Trump in 2023.

Though I have spent much of my career as a scholar of campaign finance law, I’m not certain whether that use of campaign donations is legal under federal election law. …

Trump’S Political Action Committee Wants A $60 Million Refund On Paying His Legal Fees – 3 Key Things To Know About Pacs, Richard Briffault

Faculty Scholarship

Save America, one of former President Donald Trump’s political organizations, is seeking a US$60 million refund from Make America Great Again, Inc., another Trump political organization that is less strictly regulated by federal rules.

Save America has paid Trump’s legal fees connected to multiple investigations into alleged criminal activities and is now down to less than $4 million in its account, The New York Times reported on July 31, 2023. It started 2022 with $105 million in the bank.

Trump’s use of political action committees, often known as PACs, to pay his mounting legal fees has raised questions about these …

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 …

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 …

When Presidential Campaigns End, What Happens To The Leftover Money?, Richard Briffault

Faculty Scholarship

Andrew Yang and Michael Bennet have ended their campaigns for president.

What happens to the money they have raised, but not yet spent?

I teach and write about campaign finance law. There is one clear rule about that money: Candidates can’t use it for personal expenses, like mortgage payments, groceries, clothing purchases or vacations. But there are a lot of other options, both within politics and outside of it.

Election 2020 Sees Record $11 Billion In Campaign Spending, Mostly From A Handful Of Super-Rich Donors, Richard Briffault

Faculty Scholarship

Total spending in the 2020 federal elections is projected to set a new record of almost US$11 billion by November.

When adjusted for inflation, that’s over 50% higher than 2016 election spending. This year’s federal election spending – for the presidency, the Senate and the House of Representatives – is on track to be double what it was in 2008.

The surge in campaign spending is striking. But my research on campaign finance regulation suggests the volume of election spending is not the main problem with the U.S. campaign finance system.

The real challenge for American democracy is where this …

Money Matters But It Doesn’T Decide: The Case Of Michael Bloomberg’S Presidential Campaign, Richard Briffault

Faculty Scholarship

Michael Bloomberg spent nearly a billion dollars in personal wealth on an unsuccessful bid for the US presidency. While personal spending is not limited by campaign finance laws, self-funded candidates often find it difficult to win elections.

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 …

What Is ‘Dark Money’? 5 Questions Answered, Richard Briffault

Faculty Scholarship

With the 2020 campaign season upon us, “dark money” is again in the news.

Maine’s Republican Sen. Susan Collins has decried what she contends is a “dark money” campaign against her. Montana’s Gov. Steve Bullock has made opposition to dark money a centerpiece of his Democratic presidential campaign.

But what exactly is “dark money,” and why is it considered a problem?

As a law professor who studies campaign finance, I’d like to answer those questions and explain how improved disclosure laws could shed some light on dark money.

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 …

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 …

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 …

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 …

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 …

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, …

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 …

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, …

On Commercial—And Corporate—Speech, Jonathan Weinberg

Marquette Law Review

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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 …