Buying the Electorate: An Empirical Study of the Current Campaign Finance Landscape and How the Supreme Court Erred by Not Revisiting Citizens United

Abstract

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 their 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 article then transitions into an empirical study of the current campaign finance landscape by specifically looking at: states’ unique histories of corruption, the lack of transparency with regard to corporate political expenditures, the public perception of corruption in corporate political spending practices, the independence of super PACs, the influence of political dark money and 501(c)(4) organizations being used to circumvent campaign finance laws, and the use of shell corporations to circumvent campaign finance disclosure rules and Federal tax laws. The article concludes by listing additional arguments in favor of the Supreme Court revisiting Citizens United including: the breadth of the First Amendment, the idea of corporations being “creatures of the state,” the ability of PACs to allow corporate political participation, the issue of a state’s power to exclude foreign corporations from participation in their democratic political institutions, shareholder protection, the treatment of public unions, and the Supreme Court’s history of altering constitutional doctrine when its understanding of the doctrine’s factual underpinnings no longer appear to be accurate.