Election Law Commons^™

Public Corruption Concerns And Counter-Majoritarian Democracy Definition In Citizens United V. Federal Election Commission, Daaron Kimmel

Chicago-Kent Law Review

In determining the shape of the free speech rights and anti-corruption concerns that courts must balance in campaign finance cases, judges are influenced by their own underlying understandings of what an ideal democracy should look like. For judges to decide whether the government is appropriately regulating the political process, the rules that allow all citizens to interact with and shape their democracy, judges must first decide what that democracy ought to look like. This affords judges a great deal of discretion in campaign finance cases. Citizens United v. Federal Election Commission is a particularly bold judicial attempt to reshape the …

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. …

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 …

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 …

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

Journal Articles

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 …

The Variation In Third Party Politics Across The American States, Trevor Grunwald

Political Science Theses and Capstones

It seems that third party candidates and third parties themselves are usually just a flash in the pan, who once in a while seem to get their fifteen minutes of fame. Ross Perot a native Texan created lots of havoc on the 92 and 96 presidential elections. Also in the great state of Minnesota in 1998 Jesse Ventura became Governor while being a third party candidate. One can’t help but wonder who the next big third party candidate will be, and from which state they will come. Will this person come from a conservative state a liberal state, or will …

The Myth Of The Level Playing Field: Knowledge, Affect, And Repetition In Public Debate, Jeremy N. Sheff

Faculty Publications

The industrialization of the channels and scale of communication has led some well-meaning reformers to try to regulate the ability of powerful private actors to leverage economic inequality into political inequality, particularly in the area of campaign finance. Such reform efforts are ostensibly intended to further the deliberative democratic ideal of rational, informed public decision making by preventing well-funded private interests from improperly influencing democratic debate and, by extension, political outcomes. This Article examines empirical findings in political science, psychology, and marketing and argues that, in the context of contemporary American society, the normative principles of deliberative democracy and formal …

Disclosures About Disclosure, Lloyd Hitoshi Mayer

Journal Articles

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 …

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 …

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 …

Corporate Political Speech And The Balance Of Powers: A New Framework For Campaign Finance Jurisprudence In Wisconsin Right To Life, Frances R. Hill

Articles

No abstract provided.

Voodoo Economics: A Look Abroad For A Supply-Side Solution To America's Campaign-Finance Riddle, Matthew T. Sanderson

Vanderbilt Journal of Transnational Law

The title of this Note "voodoo economics" is, at its core, an analogy: U.S. campaign-finance regulation operates like a price ceiling in the political money marketplace. Political campaigns are financed through money-for-access transactions and campaign-finance regulation caps the level of exchange. Like any other price ceiling, regulation is both effective and flawed. It suppresses the "price" of political money but inherently falls victim to some market players' avoidance activities. This price-ceiling analogy, among other things, makes apparent that many proposals forwarded by pro-regulation and deregulation advocates cannot solve the United States' century-old campaign-finance riddle. Instead, attention should turn to shaping …

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

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.

Decline And Fall? The Roberts Court And The Challenges To Campaign Finance Law, Richard Briffault

Faculty Scholarship

The Supreme Court has had a major impact on the development of campaign finance law. Court decisions have barred most expenditure limits, upheld contribution restrictions and disclosure requirements, and limited the kinds of electoral ads that can be subject to regulation. In the McConnell decision in 2003 the Court demonstrated a greater openness to campaign finance regulation when it upheld McCain-Feingold's soft money and issue advocacy restrictions. Since McConnell, however, the composition of the Court has changed, and in two decisions in the past two years, the new majority has been much more hostile to campaign finance limits. In …

Federal Campaign Finance Reform Based On Virginia Election Law, Rhodes B. Ritenour

University of Richmond Law Review

No abstract provided.

Deliberation Or Tabulation? The Self-Undermining Constitutional Architecture Of Election Campaigns, James A. Gardner

Buffalo Law Review

Perhaps the one completely uncontested truth in the shared public ideology of American politics is that an election campaign ought to be a serious occasion in the life of a democratic polity, a time when citizens reflect maturely on the great public issues of the day. On this view, the ultimate purpose of election campaigns is to offer voters and candidates a meaningful opportunity for deliberation and persuasion. Of course, the typical modern American election campaign does not seem seriously reflective and deliberative so much as shallow and unengaging. Reasoned persuasion seems to play a minor role, if that. The …

Election Law, Christopher R. Nolen

University of Richmond Law Review

Advances in Virginia's election law happen incrementally. This year was typical in that regard. While over one hundred bills and resolutions pertaining to elections were introduced in the 2006 Regular Session of the General Assembly, the legislature was judicious in its approval of election related legislation. This article surveys recent developments in Virginia's election laws by focusing on those legislative enactments and judicial decisions that are significant, interesting, or show some developing trend in the area of election law.

A Tale Of Conflicting Sovereignties: The Case Against Tribal Sovereign Immunity And Federal Preemption Doctrines Preventing States' Enforcement Of Campaign Contribution Regulations On Indian Tribes, Paul Porter

University of Michigan Journal of Law Reform

This Note will discuss whether Indian tribes can assert tribal sovereign immunity to avoid compliance with state campaign finance regulation and whether such regulations should be preempted by federal law. Tribal sovereign immunity is not an enshrined constitutional imperative; it exists only under federal common law and can be limited by the courts from blocking state suits to enforce campaign finance regulations against tribes. This Note will also argue that state campaign finance regulations should not be preempted by federal law because states have a compelling interest in protecting their political processes from corruption that outweighs tribal interests in flouting …

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 …

Campaign Finance Reform And The Social Inequality Paradox, Yoav Dotan

University of Michigan Journal of Law Reform

The recent landmark decision by the Supreme Court in McConnell v. FEC opens the way for new and more decisive regulation of the vast amounts of private and corporate money poured into the political system. However, the theoretical grounds for campaign finance regulation - as reflected in the Court's opinion - remain highly perplexing. The purpose of the current article is to tie together the evolving constitutional principle of equality in election with modern process theory and to apply them to the field of campaign finance. The inherent tension between the stringent requirement for political equality on the one hand …

Taxing Political Donations: The Case For Corrective Taxes In Campaign Finance, David Gamage

Articles by Maurer Faculty

Command-and-control regulations are generally thought to be inferior to incentive-based alternatives. This essay proposes an incentive-based approach for regulating campaign finance. In place of our current regime of contribution ceilings, the essay calls for a graduated system of contribution taxes. Rather than capping the size of political donations at a specified dollar level, we should tax donations based on a schedule of graduated rates - the larger the size of a contribution, the higher the level of taxation.

Contribution taxes generate two primary advantages over contribution ceilings. First, contribution taxes preserve more total surplus. This surplus can be shared by …

The Appearance Of Election Law, John Copeland Nagle

Journal Articles

The recent attention to election law implies that questions of reapportionment, voting rights, campaign finance, and the counting of votes belong to the same category of legal questions. In each instance, the evolving Supreme Court jurisprudence emphasizes appearances. The appearance of legislative districts, the appearance of corruption, and the appearance of partisanship are just some of the distinct ways in which the Court has concluded that appearance matter. As with other appearances, what looks to some observers like a gerrymandered district or a corrupting contribution is seen by others as a legitimate apportionment or an innocent expression of political support. …

Cheap Talk Citizenship: The Democratic Implications Of Voting With Dollars, Bruce E. Cain

University of Richmond Law Review

No abstract provided.

Hybridizing Citizenship, Kathryn Abrams

University of Richmond Law Review

No abstract provided.

Vouchers And Buckley: The Need For "Regime Change", Richard L. Hasan

University of Richmond Law Review

No abstract provided.

Political Realities And Unintended Consequences: Why Campaign Finance Reform Is Too Important To Be Left To The Lawyers, Kenneth R. Mayer

University of Richmond Law Review

No abstract provided.

Response To Voting With Dollars: A New Paradigm For Campaign Finance, Fred Wertheimer, Alexandra T.V. Edsall

University of Richmond Law Review

No abstract provided.

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

University of Richmond Law Review

No abstract provided.

Voting With Cues, Elizabeth Garrett

University of Richmond Law Review

No abstract provided.