Election Law Commons^™

Death By A Thousand Cuts: How The Supreme Court Has Effectively Killed Campaign Finance Regulation By Its Limited Recognition Of Compelling State Interests, Kevin R. Huguelet

University of Miami Law Review

This Article examines the current campaign finance jurisprudence in the United States, with a particular emphasis on the Court’s recognition of compelling state interests. Given the limited recognition of compelling state interests, this Article seeks to question the seemingly arbitrary rationale behind recognition and explore the implications of minimal acceptance of compelling state interests. Because the evolution of compelling state interest recognition has varied greatly, the Court’s recent insistence — that the state has merely one compelling interest — is troublesome. This Article provides a comprehensive review of the campaign finance jurisprudence, then reviews the decisions that created or argued …

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 …

Electoral Silver Linings After Shelby, Citizens United And Bennett, Ciara Torres-Spelliscy

Journal of Race, Gender, and Ethnicity

No abstract provided.

A Quantum Congress, Jorge R. Roig

Chicago-Kent Law Review

This article tries to address the problem of a corrupt and broken electoral system that has been captured by special interests through big money spending in political campaigns, while at the same time preserving the spirit of the Free Speech Clause of our Constitution. In doing so, this article first reviews and summarizes the different alternatives proposed as potential fixes for the campaign finance problem. It then explains why none of the proposed alternatives can accomplish the dual goals set out above. Finally, the article briefly sketches a proposal for a fundamental reworking of our representative democracy by substituting legislative …

In All Fairness: Using Political Broadcast Access Doctrine To Tailor Public Campaign Fund Matching, Andrew V. Moshirnia, Aaron T. Dozeman

University of Michigan Journal of Law Reform

Recent United States Supreme Court decisions have undermined the viability of campaign public financing systems, a vital tool for fighting political corruption. First, Citizens United v. FEC allowed privately financed candidates and independent groups to spend unlimited amounts of money on campaigning. Publicly financed candidates now risk being vastly outspent. Second, Arizona Free Enterprise Club’s Freedom PAC v. Bennett invalidated a proportional fund matching system whereby privately financed candidates’ or independent groups’ spending triggered funds to publicly funded candidates. These decisions effectuate a libertarian speech doctrine: all speakers, individual or corporate, must be absolutely unburdened. To comply with this approach, …

Paths Of Resistance To Our Imperial First Amendment, Bertrall L. Ross Ii

Michigan Law Review

In the campaign finance realm, we are in the age of the imperial First Amendment. Over the past nine years, litigants bringing First Amendment claims against campaign finance regulations have prevailed in every case in the Supreme Court. A conservative core of five justices has developed virtually categorical protections for campaign speech and has continued to expand those protections into domains that states once had the authority to regulate. As the First Amendment’s empire expands, other values give way. Four key cases from this era illustrate the reach of this imperial First Amendment. In Wisconsin Right to Life, Inc. v. …

The Legal Quagmire Of Irc § 501(C)(4) Organizations And The Consequential Rise Of Dark Money In Elections, Daniel C. Kirby

Chicago-Kent Law Review

Section 501(c)(4) organizations have recently become a hot topic with respect to campaign finance. Following the 2010 Supreme Court case, Citizens United v. Federal Election Commission, the number of IRC § 501(c)(4) organizations ballooned in number, and the amount of money flowing through § 501(c)(4) groups increased 2390 percent from the 2008 election cycle to the 2012 election cycle. This essay explores the dangers to the campaign finance system of the substantial increase in spending by IRC § 501(c)(4) organizations. The foundational claim of this essay is that IRC § 501(c) is in need of a statutory and regulatory overhaul …

Governing And Deciding Who Governs, Josh Chafetz

Cornell Law Faculty Publications

In McCutcheon v. Federal Election Commission, Chief Justice Roberts wrote that, "Campaign finance restrictions that pursue other objectives [than eradicating quid pro quo corruption or its appearance], we have explained, impermissibly inject the Government 'into the debate over who should govern.' And those who govern should be the last people to help decide who should govern."

This passage sounds great — after all, who could object to an attempt to purge official self-dealing, especially in the election-law context? And therein lies its insidiousness: this rousing language masks a programmatic attempt by Roberts and his colleagues to distance themselves rhetorically …

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 …

Fighting Foreign-Corporate Political Access: Applying Corporate Veil-Piercing Doctrine To Domestic-Subsidiary Contributions, Ryan Rott

Michigan Law Review

Campaign finance regulations limit speech. The laws preclude foreign nationals, including foreign corporations, from participating in U.S. politics via campaign contributions. The unusual characteristics of corporations, however, may allow foreign corporations to exploit a loophole in the regulatory regime. A foreign corporation may contribute to political campaigns by acquiring a domestic subsidiary and dominating it. This Note addresses how these unusual corporate behaviors enable foreign corporations to illegally corrupt the political process. This Note concludes that to close the loophole without violating the free speech rights of domestic subsidiaries, Congress should enact legislation which would apply corporate veil-piercing theory to …

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 …

Financing Elections And "Appearance Of Corruption": Citizen Attitudes And Behavior In 2012, Molly J. Walker Wilson

Catholic University Law Review

As political spending reaches new highs in the 2012 election cycle, and as the controversy surrounding wealthy donors and interest groups grows, polls demonstrate a surge of cynicism among Americans who profess a belief that the American political system is corrupt. The Supreme Court’s 2010 decision in Citizens United made possible the most recent expansion of political spending. In this case, the question was whether allowing corporations and unions to spend unlimited amounts of money on political advertising would result in corruption or the appearance of corruption. The majority on the Court determined that it would not. Many observers have …

Campaign Finance And Political Gerrymandering Decisions In The October 2005 Term, Burt Neuborne

Touro Law Review

No abstract provided.

Citizens Derided: Corporate Politics And Religion In The Roberts Court, Jamin Raskin

Schmooze 'tickets'

No abstract provided.

A Court For The One Percent: How The Supreme Court Contributes To Economic Inequality, Michele E. Gilman

All Faculty Scholarship

This Article explores the United States Supreme Court’s role in furthering economic inequality. The Occupy Wall Street movement in 2011 not only highlighted growing income and wealth inequality in the United States, but also pointed the blame at governmental policies that favor business interests and the wealthy due to their outsized influence on politicians. Numerous economists and political scientists agree with this thesis. However, in focusing ire on the political branches and big business, these critiques have largely overlooked the role of the judiciary in fostering economic inequality. The Court’s doctrine touches each of the major causes of economic inequality, …

Financing Elections And 'Appearance Of Corruption': Citizen Attitudes And Behavior In 2012, Molly J. Walker Wilson

All Faculty Scholarship

As political spending reaches new highs in the 2012 election cycle, and as the controversy surrounding wealthy donors and interest groups grows, polls demonstrate a surge of cynicism among Americans who profess a belief that the American political system is corrupt. The Supreme Court’s 2010 decision in Citizens United made possible the most recent expansion of political spending. In this case, the question was whether allowing corporations and unions to spend unlimited amounts of money on political advertising would result in corruption or the appearance of corruption. The majority on the Court determined that it would not. Many observers have …

Election Law's Lochnerian Turn, Ellen D. Katz

Articles

This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.

Politics And The Public’S Right To Know, Lloyd Hitoshi Mayer

Journal Articles

In the United States it is taken for granted that members of the public should have access to information about their government. This access takes many forms, including the ability to obtain copies of government documents, the ability to attend meetings of government officials, and the related obligations of government officials to document their activities and to reveal certain otherwise private information about themselves. This access also is often limited by countervailing concerns, such as the privacy of individual citizens and national security. Nevertheless, the presumption both at the federal level and in every state is to provide such access. …

The Effects Of The Bi-Partisan Campaign Reform Act On The Process Of The Campaign Finance In The Presidential Nomination Process, Karen Sebold

Graduate Theses and Dissertations

The Bipartisan Campaign Reform Act increased the individual donor limit to $2,000 per candidate per election and indexed the limit for inflation every two years. The primary research question guiding this study is how has the increase in the donor limit affected donor behavior. Answering this question should allow a determination to be made about how donors have responded to the increased donor limit. Understanding how donors responded to the doubled limit is important because it provides evidence on the intersection of wealth inequality and political influence. To answer the research question this study considers how the increased donor limit …

Defining Corruption And Constitutionalizing Democracy, Deborah Hellman

Michigan Law Review

The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on the giving and spending of money in connection with elections only when they serve to avoid corruption or the appearance of corruption. 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 …

Consider The Source: A Note On Public-Sector Union Expenditure Restrictions Upheld In Davenport V. Washington Education Association, Daniel A. Himebaugh

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Citizens United: A World Of Full Disclosure, Maxfield Marquardt

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Buying The Electorate: An Empirical Study Of The Current Campaign Finance Landscape And How The Supreme Court Erred In Not Revisiting Citizens United, William Alan Nelson Ii

Cleveland State Law Review

The Article discusses how the Supreme Court erred by summarily reversing the Montana Supreme Court’s decision in Western Tradition Partnership v. AG and not revisiting its holding in Citizens United v. FEC. The Article begins by discussing the holding in the Western Tradition Partnership case and analyzing both the majority and dissenting opinions. The Article then analyzes how the Montana Supreme Court distinguished Citizens United, with the Court specifically looking at the “unique” political history in Montana and finding that Montana’s ban on corporate independent political spending served a compelling state interest and was narrowly tailored to that interest. The …

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 …

Campaign Finance And Randall V. Sorrell: How Much Is Too Much And Who Decides? The Court's Splintering Devotion To Its Own Problematic Framework, Natalie Rainforth

Pepperdine Law Review

No abstract provided.

Campaign Finance Regulation And The Marketplace Of Emotions, Barry P. Mcdonald

Pepperdine Law Review

This essay examines the validity, in light of new empirical research, of the free speech theory the U.S. Supreme Court uses to justify the doctrines it currently employs to assess the constitutionality of campaign finance regulations. The Court’s model, which Professor McDonald terms the theory of 'stimulated democratic deliberation,' assumes that an unlimited quantity of campaign-related communications will result in increased public deliberation about ideas and better informed citizens, which in turn will result in better decisions about candidates for political office. In short, this model assumes that rational thought and deliberation about important issues of the day drive voter …

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 …

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 …

Secrets, Lies, And Disclosure, Helen Norton

Publications

This symposium essay suggests that we can sometimes understand those who resist campaign disclosure or disclaimer requirements as interested in keeping a secret and occasionally even in telling a sort of lie about the source or intensity of support for a particular candidate or cause. Such secrets and lies threaten listeners’ autonomy interests when the speaker seeks to keep such secrets (and sometimes seeks to tell such lies) to enhance her ability to influence her listeners’ decisions. For these reasons, I suggest greater attention to the reasons speakers seek to keep secrets (or occasionally tell such lies) in assessing the …

Updating Disclosure For The New Era Of Independent Spending, Richard Briffault

Faculty Scholarship

One of the most striking developments in recent elections has been the upsurge in spending by independent committees, particularly Super PACs and 501(c) nonprofit corporations, that are not technically affiliated with specific candidates or parties but that frequently work to promote or oppose specific candidates or parties. In many elections, these committees are de facto surrogates for the candidates they are aiding. Although our disclosure laws are reasonably effective at obtaining the disclosure of the identities of donors to candidates and parties, they fail to provide effective disclosure of the identities of the donors to independent committees. The Citizens United …