Campaign Finance Regulation Research Articles

Amicus Brief for Scholars Supporting Appellants’ Petition for Initial Hearing en banc, Lieu v. Federal Election Commission, No. 1:16-cv-02201-EGS (D.C. Cir.)

Plaintiffs-Appellants have asked the Court to reconsider its decision in SpeechNow.org v. Federal Election Commission, 599 F.3d 686 (D.C. Cir. 2010), which gave rise to so-called Super PACs and similar independent expenditure organizations. The Court in SpeechNow recognized that the “appearance of corruption” could justify campaign finance regulation under Supreme Court precedent. Id. at 692. But the Court went on to state that, “[i]n light of the [Supreme] Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures”—like SuperPACs—“also cannot corrupt or create the appearance of corruption.” Id. at 694. Amici are scholars who have conducted empirical research about the appearance of quid pro quo corruption in the campaign finance context. This brief is based on Amici’s prior work appearing in the Journal of Legal Analysis. Amici’s empirical research strongly suggests otherwise. In two studies with complementary methodologies, Amici found that contributions to organizations that make only independent expenditures may in fact create the appearance of quid pro quo corruption. In light of this empirical research, the Court should grant initial hearing en banc and reconsider its decision in SpeechNow, which rests on an incorrect premise.

한국 정치자금제도에 대한 평가 : 정치자금의 조달 및 지출, 공개, 그리고 국고보조금 측면에서

한국 정치자금제도에 대한 평가 : 정치자금의 조달 및 지출, 공개, 그리고 국고보조금 측면에서

Campaign Finance Regulation in North America: An Institutional Perspective

Abstract The regulation of campaign finance is a topic of perennial public concern in North America. The United States has lived through four decades of conflict over contribution and expenditure l...

Lawyers and the Conservative Counterrevolution

What roles have lawyers played in the conservative counterrevolution in US law and public policy? Two recent books, Jefferson Decker's The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (2016), and Amanda Hollis-Brusky's Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (2015), speak to the question. This essay explores how these books relate to a larger story of the conservative legal movement and the roles that lawyers and their organizations and networks have played in the conservative turn in American law and politics. It highlights four interrelated threads of the movement's development: creating a support structure for conservative legal advocacy; remaking the judiciary and holding judges accountable; generating, legitimizing, and disseminating ideas to support legal change; and embracing legal activism to roll back government. The essay then considers a continuing challenge for the movement: managing tensions among its several constituencies. Finally, it suggests how this story has played out in litigation to challenge campaign finance regulation.

Policy Preferences and Policy Change: Dynamic Responsiveness in the American States, 1936–2014

Using eight decades of data, we examine the magnitude, mechanisms, and moderators of dynamic responsiveness in the American states. We show that on both economic and (especially) social issues, the liberalism of state publics predicts future change in state policy liberalism. Dynamic responsiveness is gradual, however; large policy shifts are the result of the cumulation of incremental responsiveness over many years. Partisan control of government appears to mediate only a fraction of responsiveness, suggesting that, contrary to conventional wisdom, responsiveness occurs in large part through the adaptation of incumbent officials. Dynamic responsiveness has increased over time but does not seem to be influenced by institutions such as direct democracy or campaign finance regulations. We conclude that our findings, though in some respects normatively ambiguous, on the whole paint a reassuring portrait of statehouse democracy.

Democracy and Deference: A Theory of Campaign Finance Jurisprudence

The Supreme Court's modern campaign finance jurisprudence features a debate between Justices who believe the government's anticorruption interest is limited to preventing quid pro quo exchanges, and those who argue that the anticorruption interest extends further. What animates the competing conceptions of corruption offered by these factions of jurists? A recent article by Professor Deborah Hellman theorizes that corruption is a derivate concept, dependent on underlying assumptions about democratic norms. The presence of democratic assumptions, Hellman posits, counsels for greater deference than the Court currently displays. This article builds upon the work of Hellman and others by closely examining the jurisprudence to illustrate how disagreements about democracy and deference are in fact at the jurisprudence's center. This descriptive account organizes the jurisprudence into layers, with the Justices' disagreements about speech rights on the periphery, and debates about democracy and deference toward the core. In light of the observation that the Justices' disputes over democracy and deference animate the jurisprudence, the article goes on to propose a new methodology for deciding campaign finance cases. This methodology, which I call Functional Democratic Deference, suggests that courts should defer to legislative conceptions of corruption and democracy when the campaign finance regulation in question reasonably furthers either the First Amendment's function of protecting public opinion formation, or of ensuring legislative responsiveness thereto. The Functional Democratic Deference methodology improves upon the Court's current methodology, and those proposed by others, by pinpointing the decisional step at which deference is most appropriate -- determining the scope of the anticorruption interest -- but still leaving the Court latitude to intervene where judicial skepticism is warranted.

Evidence of Voter Fraud and the Impact that Regulations to Reduce Fraud have on Voter Participation Rates

The results provide some evidence of vote fraud in U.S. general elections. Regulations that prevent fraud are shown to actually increase the voter participation rate. It is hard to see any evidence that voting regulations differentially harm either minorities, the elderly, or the poor. While this study examines a broad range of voting regulations, it is still too early to evaluate any possible impact of mandatory photo IDs on U.S. elections. What can be said is that the non-photo ID regulations that are already in place have not had the negative impacts that opponents predicted. The evidence provided here also found that campaign finance regulations generally reduced voter turnout.

Does The U.S. Campaign Finance System Favor Republicans

There is a common belief that the pro-regulatory approach of Democrats, makes them more determined in the fight against big money in campaign elections, whereas Republicans, supporting recent Supreme Court decisions in Citizens United v. F.E.C. and McCutcheon v. F.E.C., benefit from the system more than their political counterparts. The aim of the article is to analyze the real character of the U.S. campaign finance regulations, both from legislative and judicial perspective, and to determine which political party benefits from the system: Republican or Democratic? By underlining the Buckley rule that ‘money is speech’ the Author suggests that campaign contributions and spending are deeply rooted in the character of American political system determining the political future of candidates of both political parties. The article refers to election cycles since 1970s, but it mainly focuses on recent election cycles, including the 2016 presidential election. Key words: campaign finance, Republicans and Democrats, U.S. politics and law

Justice Scalia: Tenured Fox in the Democratic Hen-House?

Abstract This paper examines Justice Scalia’s approach to campaign finance adjudication, in particular his skepticism of legislative motive. Three distinct strands of skepticism are identified: power-grabbing, incumbent-bracing and speech-preventing. As regards democracy Justice Scalia is identified as being caught in definitional dilemma whereby his campaign finance jurisprudence appears to serve a particular vision of democracy, which is, itself, the identifiable creature of his approach to constitutional adjudication. Ultimately, it is argued that, whilst a liberal dose of mistrust of government might well be warranted in cases concerning the devices of democracy, in the task of scrutinising campaign finance regulation and reform, a strong argument emerges for suspicion of judicial motives too since there is as much danger to democracy posed by the tenured fox as by the incumbent one.

Regulation and Upper Class Bias in Campaign Finance Systems

In the campaign finance system in the U.S., organizations representing business and upper income actors numerically dominate those representing the middle class and the poor, raising the concern that policy outcomes are skewed toward the wealthy. Some campaign finance regulations are specifically designed to alter the mobilization of organized interests, yet we have limited knowledge of whether these laws actually work as intended. In this article I take advantage of variation in state campaign finance laws to examine how laws banning and regulating corporate and labor campaign contributions and expenditures shape the mobilization of upper class actors (i.e., business groups and professional associations) and labor groups, and ultimately “bias” in the U.S. states. Descriptively, I demonstrate that bias in state campaign finance systems is substantial. The multivariate analysis covering data from the early 1990s to 2010 shows that bans on direct contributions from corporations and labor unions reduce the mobilization of these groups and ultimately structure bias in the organizational population in state campaign finance systems.

Bring Back Equality

Abstract This article makes the case for considering political equality as a compelling government interest in establishing campaign finance laws. The article considers the historic role of equality from the Declaration of Independence through the Fourteenth Amendment and then its more recent limitation as a valid basis for campaign finance regulation. The author argues that equality is closely related at the root to other interests such as fighting corruption or supporting discursive democracy, but that equality must also be considered on its own. The article proposes a concept of bounded equality, rather than perfect equality, to be applied in the campaign finance context. Even with a valid interest in equality, campaign finance laws must be respectful of the First Amendment and the important role of money in modern political communications. Equality can be a basis for upholding reasonable campaign finance laws, but not outright bans, very low limits, or felony penalties that are too restrictive of spee...

The Inevitable Party: Why Attempts to Kill the Party System Fail and How They Weaken Democracy. By Seth Masket. Oxford: Oxford University Press, 2016.

<i>The Inevitable Party: Why Attempts to Kill the Party System Fail and How They Weaken Democracy</i>. By Seth Masket. Oxford: Oxford University Press, 2016.

Separations of Wealth: Inequality and the Erosion of Checks and Balances

American government is dysfunctional: Gridlock, filibusters, and expanding presidential power, everyone seems to agree, threaten our basic system of constitutional governance. Who, or what, is to blame? In the standard account, the fault lies with the increasing polarization of our political parties. That standard story, however, ignores an important culprit: Concentrated wealth and its organization to achieve political ends. The only way to understand our current constitutional predicament — and to rectify it — is to pay more attention to the role that organized wealth plays in our system of checks and balances.This Article shows that the increasing concentration of wealth and political power in the hands of the wealthy elite, and the concomitant decline of countervailing organizations, help explain the extent of executive power, the rise of gridlock, and, ultimately, the deterioration of effective checks and balances in the Federal Government. A core goal of constitutional structure — to promote democratic accountability and responsiveness to the broad citizenry — is severely compromised by the power wielded by organized wealth. Moderating partisanship will not alone solve constitutional dysfunction, nor will conventional good governance reforms like campaign finance regulation. Rather, this Article argues, the law should facilitate organizations of ordinary Americans that can serve as a countervailing check and prod in governance.

Campaign Cost and Electoral Accountability

The increasing cost of political campaigns and its impact on the electoral process are issues of paramount importance in modern democracies. We propose a theory of electoral accountability in which candidates choose whether or not to commit to constituency service and whether or not to pay a campaign cost to advertise their platform. A higher campaign cost decreases voter welfare when partisan imbalance is low. However, when partisan imbalance is high, a higher campaign cost is associated with a higher expected level of constituency service. More costly campaigns can thus have a rebalancing effect that improves electoral accountability. We discuss the implications of our findings for campaign finance regulation and present empirical evidence consistent with our key predictions.

In the Shadows of Sunlight: The Effects of Transparency on State Political Campaigns

Abstract In recent years, the courts have invalidated a variety of campaign finance laws while simultaneously upholding disclosure requirements. Courts view disclosure as a less-restrictive means to root out corruption while critics claim that disclosure chills speech and deters political participation. Using individual-level contribution data from state elections between 2000 and 2008, we find that the speech-chilling effects of disclosure are negligible. On average, less than one donor per candidate is likely to stop contributing when the public visibility of campaign contributions increases. Moreover, we do not observe heterogeneous effects for small donors or ideological outliers despite an assumption in First Amendment jurisprudence that these donors are disproportionately affected by campaign finance regulations. In short, the argument that disclosure chills speech is not strongly supported by the data.

Knowledge of campaign finance regulation reduces perceptions of corruption

AbstractWe use an experimental survey design to measure how campaign finance regulation influences perceptions of political corruption and trust in politicians when citizens are exposed to information about regulation. Unlike most observational studies, 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. Findings have crucial implications for public policy. 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.

Applying Citizens United to Ordinary Corruption

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.

The Coordination Fallacy

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 limits on coordinated expenditures? By preventing coordination on large expenditures like television ads, the law turns very useful support into less useful support, reducing the value an actor can convey. But actors can surmount this with more money: $1 million spent on less useful ads can convey a lot of value, often more than smaller amounts spent on very useful ads or contributions. Limits on coordination may also inhibit bargaining, the third element of a quid pro quo, but again, sophisticated actors can surmount this: they can bargain without discussing the substance of any expenditures. So coordination regulations cannot deter much corruption, at least not when wealthy and sophisticated actors are involved, the very actors who cause the most concern. Consequently, coordination regulations may violate the Constitution. This is not because coordinated expenditures do not corrupt but because the regulations do not deter. Solving this problem requires more than a broader set of regulations. It requires confronting a fallacy at the heart of campaign finance: the belief that coordination relates in any operational way to corruption.

Criminal Corruption: Why Broad Definitions of Bribery Make Things Worse

Although the law of bribery may look profoundly under-inclusive, the push to expand it usually should be resisted. This article traces the history of two competing concepts of bribery — the “intent to influence” concept (a concept initially applied only to gifts given to judges) and the “illegal contract” concept. It argues that, if taken literally and applied to officials other than judges, “intent to influence” is now an unthinkable standard. The article defends the Supreme Court’s refusal to treat campaign contributions as bribes in the absence of an “explicit” quid pro quo and its refusal to read a statute criminalizing deprivations of “the intangible right of honest services” as scuttling the quid pro quo requirement. While recognizing that the “stream of benefits” metaphor can be compatible with this requirement, it cautions against allowing the requirement to degenerate into a “one hand washes the other” or “favoritism” standard. The article maintains that specific, ex ante regulations of the sort commonly found in ethical codes and campaign finance regulations provide a better way to limit corruption than bribery laws, but it warns that even these regulations should not prohibit all practices that may be the functional equivalent of bribery. The article concludes by speculating about whether the efforts of federal prosecutors to reduce corruption over the past 60 years have given us better government.

Fighting Foreign-Corporate Political Access: Applying Corporate Veil-Piercing Doctrine to Domestic-Subsidiary Contributions

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 campaign finance system, reinforcing its legislation with qui tam provisions.