Is “Dependence Corruption” the Solutionto America’s Campaign Finance Problems?

The debate over campaign finance reform is usually framed as a conflict between reducing corruption in the electoral process, on the one hand, and protecting freedom of speech, on the other. There is far more at stake, however, in the controversy over campaign finance regulation. By engaging in a comparative analysis of key decisions by the U.S. Supreme Court and the Supreme Court of Canada, this article shows that the judicial oversight of campaign finance reform raises fundamental and complex questions about democratic values, processes, and institutions. Specifically, I argue that conflicts over campaign finance regulation are at base disputes about how power should be distributed within a democracy. In addition, I claim that the decision to regulate campaign finance should be viewed as inevitably involving a trade-off among competing distributions of power in a democracy. In other words, campaign finance regulation does not simply present a choice between reducing corruption and protecting speech; instead, the actual decision involves a far more complex balancing of competing objectives. This article outlines a proposal for how courts should analyze the power trade-offs involved in the regulation of campaign finance.

Examining public perceptions of US campaign finance over time through survey experiments

Regulating Campaign Finance through Legislative Recusal Rules

In 2004 the country witnessed the first presidential election since the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA). A major purpose of BCRA was to end two of the worst abuses of the federal campaign finance law-sham issue ads and soft money raised by political party committees. The BCRA amendments, like existing federal campaign finance law, were designed first and foremost to prevent corruption or the appearance of corruption resulting from large contributors' requesting favors from or gaining influence with the public officials whose campaigns their contributions benefited, regardless of whether the contributor or the lawmaker initiated the mutually beneficial process. As many foresaw at the time of BCRA's passage, individuals and groups with considerable assets would seek and probably find new campaign finance vehicles for achieving most of the benefits of the system prior to BCRA. Nonetheless, the swiftness with which 527 groups have threatened to replace political parties as the soft-money middlemen in federal campaigns surprised and angered many - from members of Congress to ordinary citizens. Since the 2004 election saw one of the most polarized campaigns on record and since 527 groups, both Democratic and Republican, were especially active in funding attack ads and other highly visible forms of campaign activity, they emerged as the arch villains of the process. Bills have been introduced in Congress to compel almost all 527 groups engaged in federal campaigns to register as political committees subject to federal campaign finance law (FECA). In addition, lawsuits have been filed to force the Federal Election Commission (FEC) to impose sanctions on 527 groups that failed to register as political committees in the last election. Lawsuits were also filed challenging some of the FEC's regulations on the grounds that they emasculated the provisions of BCRA, thereby contributing to the failure of reform efforts the agency is charge with implementing. As a result, some of the regulations were invalidated, some rewritten, and some are being appealed. In short, campaign finance reform is still in flux. The purpose of this Article is to analyze the legal issues that must be resolved before the validity of efforts to rein in 527 groups can be established. Most of these issues are constitutional because, by its nature, campaign finance regulation intrudes upon political speech, part of the core of First Amendment speech entitled to the most vigorous protection by the courts. My contribution to an area of the law where so many others have preceded me is to integrate the constitutional election law analysis with a technical analysis of what 527 groups really are and how they actually operate under the Internal Revenue Code. I also develop a new paradigm for understanding the conceptual foundations of specific constitutional doctrines that can and, in my view, do reveal a relatively coherent election law jurisprudence across the Supreme Court's campaign finance decisions, even taking into account the recent decision in McConnell v. FEC, which most commentators agree broke new ground. I divide the constitutional issues at stake into different categories and conclude that in some areas the precedents are difficult to square with the 527 reform proposals, whereas in other areas mainstream Court precedents tend to support the validity of the reform proposals. In conclusion, I raise some policy questions that, if faced squarely, should give lawmakers pause before painting all 527 organizations with the same legislative brush.

This article discusses the U.S. Supreme Court’s rejection of equality as a democratic value that may sometimes justify limits on campaign spending. Although the U.S. Supreme Court has long voiced skepticism of egalitarian rationales for campaign finance regulation, it has sometimes allowed equality to come in through the back door, disguised as an anticorruption rationale. Citizens United v. Federal Election Commission obliterates equality as a rationale for regulation in any form. Its prohibition on egalitarian justifications applies to both the inputs and the outputs of the democratic process. In other words, spending limits may not be used to equalize citizens’ ability to elect candidates to office (“electoral equality”) or to equalize citizens’ influence on decisions made by those in office (“policymaking equality”). The consequence of equality’s banishment is an impoverished political dialogue about campaign finance regulation in the United States. Those in the public sphere are unable to talk honestly about the most important value that regulation might serve. The article traces the roots of equality’s banishment from campaign finance discourse, explains how Citizens United makes things worse, and suggests a path toward a more constructive U.S. jurisprudence. In so doing, it uses Canadian campaign finance law as a counterpoint, one that highlights flaws in the American approach. The two countries stand at opposite ends of the spectrum when it comes to equality. Canada’s Parliament and Supreme Court have embraced an egalitarian vision of democracy with the same gusto that the U.S. Supreme Court has disowned it. This difference has major consequences on the public discourse surrounding campaign finance regulation and the very structure of democracy. The article starts with a discussion of Buckley v. Valeo and its progeny, including cases that subtly depart from that decision’s anti-egalitarian refrain. It distills from this line of precedent four democratic values: (1) liberty, (2) equality, (3) anti-corruption, and (4) competitiveness. Historically, the battles over campaign finance in the U.S. have mostly focused on the values of liberty and anti-corruption. But the really important question is how to promote equality without diminishing fair competition. After assessing the Court’s renewed anti-egalitarian turn in Citizens United, the article contrasts Canadian constitutional law, showing how it does a better job of affirming the sometimes competing values at stake in the regulation of campaign finance. It closes by assessing the prospects for a rebirth of equality as a rationale for regulation, should the composition of the U.S Supreme Court change.

The regulations concerning how American political campaigns are financed have changed dramatically over the past decade. The US Supreme Court’s Citizens United v. Federal Election Commission decision (2010) removed restrictions on corporate and labor spending on elections. A subsequent decision in American Tradition Partnership v. Bullock held that the ruling also applied to state elections. The Supreme Court’s decision ultimately led to the establishment of “super PACs” as a result of the District of Columbia Court of Appeals opinion in SpeechNow.org v. Federal Election Commission, which held that political committees that only spend money independently in support of candidates are not subject to federal contribution limits but must comply with disclosure rules. Super PACs were thus permitted to use unlimited contributions to finance independent advocacy spending. While super PACs cannot give money directly to candidates or directly coordinate their efforts with candidates or parties, within a short amount of time they developed the ability to come quite close to serving as parallel campaign organizations. Not coincidentally, total spending on presidential and congressional elections increased substantially in the election cycles following the decision. The Citizens United decision did not merely increase spending in these elections, however; it shifted the balance in spending away from candidates and parties and toward groups. This prompted a variety of changes, as well, in the content of political advertisements; in public attitudes toward campaign finance; and in the ability of citizens to know the sources of campaign money. However, not all changes in campaign finance were a consequence of the Citizens United decision; candidate fundraising practices, advertising strategies, communication techniques, and many other activities related to the campaign finance system are constantly evolving. This literature review focuses on the origins of the Citizens United decision, ways in which we might measure its consequences for campaign spending, and the broader consequences for American democracy of campaign finance laws and practices.

Supreme Court precedent dating back to the 1970s and 1980s precludes state and local jurisdictions from limiting financial contributions to committees formed to support or oppose ballot measures or from barring corporate expenditures in ballot measure campaigns. These precedents emerged from the Supreme Court at a time of its greatest hostility to campaign finance regulation, when it viewed such laws as impermissibly impinging on the rights of free speech and association guaranteed by the First Amendment. These precedents are ripe for reexamination in light of the Supreme Court's new-found deference to campaign finance regulation, culminating in 2003's McConnell v. Federal Election Commission, a case upholding the major provisions of the Bipartisan Campaign Reform Act of 2002.This Article considers three potential ballot measure campaign finance regulations and their likelihood of passing constitutional muster under the more recent precedents: a law limiting contributions to ballot measure committees controlled by officeholders; a law limiting contributions to all ballot measure committees; and a law limiting expenditures in ballot measure campaigns by corporations and labor unions. Although all three proposed laws pretty clearly would have been struck down by the Supreme Court in earlier decades, they have a surprisingly good chance of passing muster today.One (obvious) purpose of this Article is to consider constitutional questions over ballot measure limits that courts inevitably will confront in coming years. But a second and equally important purpose is to use this analysis to consider the role that evidence plays in the Court's campaign finance jurisprudence. The Court's demand for evidence in campaign finance cases is shifting and imprecise. In fact, evidentiary analysis appears often to be a proxy for a determination on the merits made more on faith than evidence. In the final part of this Article, I consider the appropriate role that evidence should play in campaign finance cases. I argue that a more precise and transparent evidentiary inquiry into the connection between the goals of campaign finance laws and the means of achieving them will assist fair-minded judges in the inevitable constitutional balancing. I argue decidedly against the role that evidence currently plays in Supreme Court analysis of campaign finance cases as well as against Professor Pildes's alternative proposed motive test for judging campaign finance constitutional challenges.

The decline of political efficacy and trust in the United States is often linked to the rise of money in politics. Both the courts and reform advocates justify restrictions on campaign donations and spending as necessary for the improvement of links between the government and the governed. We conduct the first test of whether campaign finance laws actually influence how citizens view their government by exploiting the variation in campaign finance regulations both across and within states during the last half of the 20th century. Our analysis reveals no large positive effects of campaign finance laws on political efficacy. Public disclosure laws and limits on contributions from organizations are in some cases associated with modest increases in efficacy, but public financing is associated with a similarly modest decrease in efficacy. ∗Previous versions of this paper were presented at the 2003 Annual Meeting of the American Political Science Association and 2003 Annual Meeting of the Midwest Political Science Association. We thank Barry Burden, Dick Niemi, the editors, and anonymous reviewers for helpful comments. Thanks also to Matt Jacobsmeier and Matt Stiffler for research assistance. †Department of Political Science, University of Rochester, Harkness Hall, Rochester, NY 146270146; 585-273-4779; david.primo@rochester.edu; Fax: 585-271-1616 ‡Department of Economics and Truman School of Public Affairs, University of Missouri, 118 Professional Building, Columbia, MO 65211; 573-882-5572; milyoj@missouri.edu; Fax: 573-882-2697

The Article argues that Citizens United v. FEC ended campaign finance law as we long knew it, but along lines that have little to do with corporate electioneering. Although the public outcry focused on the decision’s narrow effect on corporations, the Article demonstrates how the decision’s broader logic transformed campaign finance law beyond corporate electioneering and led within months to the nearly complete de-regulation of independent expenditures in time for the 2010 elections. Those elections provided only a glimpse of what the Article calls the reverse hydraulics of de-regulation, and as the Article argues, this new de-regulated world of campaign finance is not a better one. Citizens United therefore is a turning point not just for campaign finance law, but all regulation of the relationship between campaign money and the political process. However, the Article surprisingly concludes in the end that the Supreme Court may still be somewhat sympathetic to alternate forms of regulation of political corruption, notwithstanding Citizens United’s broad skepticism about corruption. Namely, the Court may be more sanguine toward government regulation of campaign money’s influence when it is structured as ex post regulation of the legislative process on the back end, as opposed to the ex ante structure of campaign finance regulation. Citizens United, when considered in light of other recent Court decisions, points this way forward for campaign finance reform without campaign finance regulation.

Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anti-corruption law — one concerning campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law presents primarily issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment, the two bodies of law look like two ships passing in the night.The Supreme Court has rendered important decisions in both areas. However, it is only in the campaign finance cases that the Court has articulated a vision of corruption. A well-known recent example is the 2010 decision in Federal Election Commission v. Citizens United. There the Court stated that “influence” and “access” brought about through campaign support, including contributions, are not corruption. The Court appears to embrace a narrow view of what is corruption, tied closely to the concept of quid pro quo.This Article raises the question whether cases such as Citizens United and other campaign finance decisions should have generative force outside the electoral context. I contend that they should not — that preventing purchased political influence, whether generalized or particularized, is central to the federal anti-corruption enterprise. The matter is presented both on a theoretical level, and through examination of Supreme Court cases in what might be called the field of “ordinary corruption.” This examination yields an unclear picture. Some cases appear to be in harmony with the campaign finance decisions, raising the possibility that the Court does hold a unified view of corruption. However, the decision in Evans v. United States embraces a broad view of corruption in construing a key federal statute: the Hobbs Act. Evans has had extraordinary generative force in the lower federal courts. In particular, they have diluted any requirement of specificity in the concept of quid pro quo by emphasizing the presence of a “stream of benefits” as a means of securing somewhat generalized influence with public officials. The lower courts have thus reached results that further broad anti-corruption goals while ignoring intimations of a narrow view in the campaign finance cases. To the extent that the Supreme Court may extend this narrow view to ordinary corruption, the result could, as it has in the past, be a major ruling reining in the lower courts. The two ships would, in effect, collide.

Recent Supreme Court decisions have hobbled campaign finance regulation and placed significant constitutional constraints on possible future reforms. But the Supreme Court has not acted alone. Major constitutional changes often require a substantial legal and political infrastructure, an ecosystem of actors, ideas, strategies, and tactics to instantiate new constitutional doctrine into law. In Big Money Unleashed, Ann Southworth examines the composition, development, organization, and intellectual underpinning of the legal movement that has worked to cripple campaign finance regulation. She chronicles the raising and testing of the key legal theories; the sources of political and financial backing for the movement; the combination of disparate groups into an antireform coalition; and the organization of what has proven to be a very effective litigation strategy. The result, she explains, has been the ascendancy of a powerful constitutional discourse that treats money as speech, campaign spending as freedom, and government regulation as censorship. The antireform litigation campaign on its own would not have been enough to transform the law; key appointments to the Supreme Court were essential. But the movement provided the Court with the cases, the arguments, and broader political support that are part of constitutional change.

The New Campaign Finance Sourcebook has been integrated with the award-winning and frequently visited Brookings website to provide a timely, interactive tool for policymakers, journalists, and scholars. Four of the country's leading experts on campaign finance reform have contributed original essays on important facets of finance law and administration. The essays are accompanied by a list of corresponding documents available on the website. The book offers a thorough overview and analysis of this highly controversial issue, including the history of campaign finance regulation and the current state of the law, current practices and trends in the flow of money, the constitutional debate, the use of political party money, issue advocacy, public financing of presidential elections, implementing and enforcing campaign finance laws, and campaigning on the internet. The authors conclude with a broad overview of alternative approaches to reform. The related website (www.brookings.edu/campaignfinance) features sidebars that correspond to the book's chapters as well as associated documents. The site is frequently updated with recent developments in campaign finance regulation and analyses of current court cases and administrative decisions. There are also links to advisory opinions from the Federal Elections Commission, nonprofit organizations that study reform, and related publications-.

This chapter discusses the theoretical foundations of campaign finance regulation with a particular focus on the central concepts—political equality, liberty, corruption, participation, representation, free speech, accountability, political influence, and democracy—that have animated scholarly debates. The chapter begins by outlining the key Supreme Court decisions on the constitutionality of campaign finance measures and the central concepts that have emerged from these cases. It then turns to the classic debate between libertarian and egalitarian approaches to campaign finance regulation. It also traces the egalitarian and libertarian strands in the Supreme Court’s decisions. The chapter subsequently analyzes the concept of corruption. It sets out various categorizations of corruption and addresses why corruption is wrong. The chapter then turns to the relationship between campaign finance and democracy, exploring various issues including political inequality, legislative skew, plutocracy, participation, and representation. Finally, the chapter considers the First Amendment and its application to campaign speech and elections. It canvasses debates on various topics, including money as speech, disclosure, electoral exceptionalism, electoral integrity, and the right of participation. The conclusion outlines two avenues of ongoing research: the challenges of social media and judicial deregulation, respectively, which have broad implications for campaign finance.

We use an experimental design to measure how campaign (political) finance regulation influences perceptions of political corruption and trust in politicians when citizens are actually exposed to information about regulation. Unlike most of the observational studies in the literature, results of this experimental study suggest that knowledge of campaign finance regulation substantially reduces citizens’ perceptions of corruption but has only limited effect on trust in politicians. Our findings regarding the positive effect of knowledge of campaign finance regulation on perception of political corruption have crucial and urgent implications for public policy, as well as for informing the public about campaign finance regulation. At a time when public cynicism about politics is high, a significant reduction in perceptions of political corruption through successful dissemination of campaign finance regulation would be a boost to the legitimacy of democracies. The findings, however, suggest that the effect of information on regulation could be dependent on the context.

This study tests the empirical assumptions about American public opinion found in the Supreme Court's opinions concerning campaign finance reform. The area of campaign finance is a unique one in First Amendment law because the Court has allowed the mere perception of a problem (in this case, corruption) to justify the curtailment of recognized First Amendment rights of speech and association. Since Buckley v. Valeo, defendants in campaign finance cases have proffered various types of evidence to support the notion that the public perceives a great deal of corruption produced by the campaign finance system. Most recently, in McConnell v. FEC, in which the Court upheld the McCain-Feingold campaign finance law, both the Department of Justice and the plaintiffs conducted and submitted into evidence public opinion polls measuring the public's perception of corruption. This article examines the data presented in that case, but also examines forty years of survey data of public attitudes toward corruption in government. We argue that trends in public perception of corruption have little to do with the campaign finance system. The share of the population describing government as corrupt went down even as soft money contributions skyrocketed. Moreover, the survey data suggest that an individual's perception of corruption derives from that person's (1) position in society (race, income, education level); (2) opinion of the incumbent President and performance of the economy over the previous year; (3) attitudes concerning taxation and big government; and (4) propensity to trust other people, in general. Although we conclude that, indeed, a large majority of Americans believe that the campaign finance system contributes to corruption in government, the data do not suggest that campaign finance reform will have an effect on these attitudes.