Federal Election Commission Research Articles

Do Interest Group Endorsements Cue Individual Contributions to House Candidates?

Non-incumbents face an uphill battle in their quest to raise sufficient funds to compete effectively against seated House incumbents and, alternatively, in competitive open-seat House contests. Interest group endorsements are thought to contribute to their electoral success, but whether endorsements help non-incumbent House candidates raise contributions from individuals, as a component of this success, remains unknown. Their heavy reliance upon individual contributions to finance their campaigns as well as the prominence of the groups making a large number of endorsements justifies an explicit test of this relationship. Using contribution data from the U.S. Federal Election Commission (FEC) between 2006 and 2012 paired with endorsement tabulations in both a set of regression and matching analyses, I uncover evidence that endorsements increase individual contributions to the candidate over the course of the election cycle. The results underpin the value of endorsements to non-incumbent candidates as well as their utility for the endorsing groups wishing to influence House elections.

Does party support help candidates win?

The parties’ congressional campaign committees have made it their business to strategically provide contributions to candidate campaigns in order to help their candidates win. However, the effectiveness of these contributions in terms of increasing the competitiveness of party-sponsored candidates remains untested. Using contribution data from the U.S. Federal Election Commission in a series of mixed effects models as well as a matching analysis, the receipt of direct party contributions and coordinated support is shown to significantly improve the competitive position of challengers but not open seat candidates in races for the House. Further, independent expenditures by the parties do not significantly increase candidates’ competitiveness. The implications of these results for future party strategies are explored.

Institutional Investors and Political Activism

The landmark decision by the U.S. Supreme Court on Citizens United v. Federal Election Commission asserts for the first time that corporations benefit from First Amendment protection regarding freedom of speech in the form of independent political expenditures, thus creating a new avenue for political activism. This paper studies how corporations adjusted their political activism in response to this ruling. The paper presents evidence consistent with the hypothesis that institutional investors, in particular public pension funds, have a preference for not using the new avenue for political activism, a preference not shared by other investors.

Speaking Up: The Challenges to Section 501(c)(3)’s Political Activities Prohibition in a Post-Citizens United World

Following the Supreme Court’s decision in Citizens United v. Federal Election Commission, there is still one type of corporation that cannot engage in political speech: the nonprofit corporation. Section 501(c)(3) of the Internal Revenue Code prevents nonprofit corporations that hold tax-exempt status from participating in “any political campaign on behalf of (or in opposition to) any candidate for political office.” But recent events show a growing call to reform this provision, referred to as the political activities prohibition. These events include new First Amendment developments, charities allegedly flouting the prohibition in recent elections, the 2013 IRS targeting scandal, and finally a notice of proposed rulemaking promulgated by the IRS and the Treasury Department in 2013 that could change the political activity regulations for both section 501(c)(3) and section 501(c)(4) organizations. This Note responds to these recent events and discusses the purpose and structure of the political activities prohibition, both within section 501(c)(3) and in connection with section 501(c)(4). The Note then examines different constitutional challenges to the political activities prohibition, including First Amendment and selective prosecution challenges stemming from the IRS’ alleged haphazard enforcement of the prohibition. This Note concludes that the political activities prohibition should not be eliminated, but advocates implementing several laws and agency policies to ensure even enforcement of the prohibition.

Fear-Driven Jurisprudence: McCutcheon and Unlimited Campaign Contributions as Mechanisms for Entrenching White Supremacy

The United States Supreme Court, in McCutcheon v. Federal Election Commission, eliminated the authority of the FEC to limit the aggregate donations made by individuals. Now, a donor’s total giving was limited only by a) the limit on the amount they could give to a single candidate, and b) the number of candidates they chose to give to. This paper attempts to analyze patterns of donor giving to determine if the McCutcheon decision has had a crowding-out effect on minority dollars. It then places this decision in a critical context, suggesting that the decision is the new, more respectable, less overt version of Jim Crow - a law designed to ensure that white supremacy, in political and economic terms, remains the law of the land, even as Americans of European descent become a numerical minority.

Uniting Citizens after Citizens United : Cities, Neoliberalism, and Democracy

Uniting Citizens after Citizens United:Cities, Neoliberalism, and Democracy Michan Connor (bio) The Supreme Court’s five-to-four decision in Citizens United v. Federal Election Commission overturned provisions of the 2002 Bipartisan Campaign Reform Act (commonly known as McCain-Feingold) that had barred corporations from spending money on independent (i.e., not formally affiliated with a candidate) political communication.1 Justice Anthony Kennedy wrote for a five-to-four majority that the Federal Election Commission (FEC) could not constitutionally allow individuals to speak through paid political advocacy while prohibiting corporations from doing so. Critics of the decision, beginning with the dissenting justices and including President Barack Obama, have accused the court of partisanship and encouraging corporations to dominate electoral politics. The phrase “post–Citizens United” has come to signify a new, money-driven political order in which the voices and influence of ordinary citizens are suppressed. In this article, I argue that the implications of the decision and therefore the changes needed to create a more democratic society have been widely misunderstood. A more productive understanding of Citizens United must view the case in its entirety as a sociolegal event—including winning, losing, and unmade arguments and the premises underlying them. All of these elements reflect the assumptions held by the parties about power, which I define, after professor of geography Ruth Wilson Gilmore, in terms of “categories of social actors and their capacity to realize their own freedom.”2 Critical legal scholars have argued that the law [End Page 5] is perpetually subjected to normative judgments and “strategic recategorization” of legitimate actors and their capacities to act. In turn, arguments in the judicial arena have an expressive effect, reifying understandings of political capacity and citizenship, becoming “constitutive of group and individual identities and values,” and defining legitimate forms of political action.3 Citizens United generated particularly intense reaction because the majority affirmed and extended the legal doctrine of corporate personhood into the realm of free speech, an instance of strategic categorization in terms of who may speak that the dissenting justices and much of the public found deeply troubling. However, the FEC’s legal arguments, the dissenting opinion, and many of the most prominent critiques of the decision substantively agree with the majority about how legitimate speakers speak—by spending money to purchase media time. This article begins with a critical evaluation of arguments made on behalf of the FEC in Citizens United and by critics of the decision afterward, exposing the narrowness of the government’s argument and of political remedies for the problem of money in politics that that argument inspired. These liberal critiques and imagined solutions are embedded within a set of neoliberal assumptions. Neoliberalism in this context is a broad political-economic and ideological tendency that valorizes the individual right of property as the core of freedom.4 In this context, a neoliberal viewpoint defines political participation as private and rejects a structural critique of wealth in politics or, indeed, any conception of public political culture distinct from private spending. Although these arguments have since constituted the nominal left pole of discussions and strategy to counter the influence of corporate spending, Citizens United’s critics have far more in common with their antagonists than they acknowledge and defend democracy far less than they claim. My critique of Citizens United seeks to engage with deeper issues of power in contemporary political culture by considering the differences between businesses and cities as categories of corporations. Citizens United recategorized business corporations as First Amendment speakers and, by extension, as legitimate political subjects; more democratic and inclusive politics require a similar recategorization of cities and particularly that social movements embrace the powers that cities represent as governments and as public corporations based on association as objects of struggle. I present a brief comparative history of municipal and private corporations to demonstrate that the former have frequently served as instruments of democratic politics, supporting what Thomas Bender calls “thinking oneself into politics.”5 City powers have been restrained and redefined over the course of the twentieth century precisely to curb the threats that strong cities have posed to private interests. I further argue that legal and political arguments about...

The Party’s Over: McCutcheon, Shadow Parties, and the Future of the Party System

McCutcheon v Federal Election Commission can only be understood against the deep shifts taking place in American politics. By some measures, party identity is very strong, and the Democratic Party and the Republican Party are at the height of their power. Other measures suggest that the parties are losing their grip on politics to “outside groups” – SuperPACs and nonprofits – which have taken over a startling array of core party functions. But these “outside groups” are are deeply and durably aligned with one party or the other and run by consummate party insiders. That’s why we call them shadow parties. The explosive growth of outside groups explains why many campaign-finance supporters saw a silver lining to Shaun McCutcheon’s suit. McCutcheon struck down the FECA’s aggregate limits, which capped how much hard money into one donor could give to candidates and party committees in a given year. The crude version of the “silver lining” argument suggests that McCutcheon will shore up the parties against outside spenders. The more nuanced argument – and the emerging conventional wisdom in the field – is that McCutcheon will level the playing field between the official party leaders and the shadow parties by allowing donors to pour more money into the official party structure.We are skeptical. Some funds that would have flowed to outside groups will seep back into the official party structure, but the effect will be modest. Moreover, the crude argument – pitting “outside” funders against “the parties” – fundamentally misdiagnoses the problem. The real problem with the growth of shadow parties has less to do with the “strength” or “weakness” of the official parties relative to outside groups and more to do with who exercises power within the parties writ large. What we are witnessing is not outside spenders pulling power away from the parties but an intraparty battle for the heart and soul of the party writ large. Although we see this battle as an intraparty fight, its likely outcome is one that “small-d” democrats ought to find disquieting. The parties have been important sites of pluralist competition. The shift toward shadow parties threatens to flatten the party structure and inhibit pluralist politics. Money isn’t just shifting from one place to another within the party writ large; it is shifting from one type of institution to another, quite different type of institution. Compared to the official parties, the shadow parties are more hierarchical and less porous. They are closed to most and controlled by few. We are especially concerned that the shift to the shadow parties will permanently squeeze out the party faithful – the activists and highly engaged citizens who serve as a bridge between everyday citizens and political elites – and largely eliminate their already-diminished role within the party writ large. The shift toward shadow parties thus raises important questions about the future of American politics and who ought to control political parties.

Book Review: Law and Ethics for Today’s Journalist: A Concise Guide, by Joe Mathewson Journalism Ethics, Arguments and Cases for the Twenty-First Century, by Roger Patching and Martin Hirst

Joe Mathewson and Ethics for Today's Journalist: A Concise Guide. Armonk, NY: M.E. Sharpe, 2014. 222 pp. Roger Patching and Martin Hirst Journalism Ethics, Arguments and Cases for the Twenty-First Century. London, UK: Routledge, 2014. 300 pp.In our digital and social world, legal and ethical issues emerge in an instant, and the author of and Ethics for Today 's Journalist: A Concise Guide finds that training aspiring reporters requires integration. Law and ethics intertwine in journalism; as such, they should be taught and discussed together (p. xi). Mathewson, a former Supreme Court correspondent for the Wall Street Journal, teaches law and ethics at Northwestern University.Mathewson's book includes thirteen chapters on the courts and legal system; ethics, root and branch; prior restraint; libel; invasion of privacy; less common invasion of privacy torts; fair trial versus free press; anonymous sources and the journalist's privi- lege; copyright; access to government documents and meetings; broadcast regulation; Citizens United v. Federal Election Commission; and the ethical journalist.Much of the book's content is appropriate for a traditional communication law course for journalism majors. It begins with a readable introduction on the sources of law and judicial structure. Rather than burying ethics late in the book, chapter 2 opens with the Jayson Blair story. Mathewson offers an important warning: Sadly, in recent years, other fabricators and plagiarists, most of them experienced journalists, have been fired or suspended at other major news organizations (p. 14).The book then offers a step back into classical ethics, such as virtue, love, rights, duty, and utility. While a review of professional conduct codes also is useful, a strength of this chapter is its focus on two key concerns:* Concealment and Confidentiality (p. 22)* Conflict of Interest (p. 23)Each chapter concludes with a thoughtful set of discussion questions and references for additional reading.As the book shifts back into law, however, there is not enough integration of ethics concepts. the prior restraint chapter, for example, the reader gets only a short con- clusion: In sum, you may publish, but publish responsibly, or else it may be subject to serious penalties, as we shall see in the chapters to come (p. 37).The libel chapter, however, successfully integrates law and ethics under a subhead- ing Wall Street Journal in Error (p. 48). Mathewson lists six critical mistakes (pp. 49-50). And the Libel section offers important advice:At the very least, operators of blogs and websites must be aware that publishing defamatory remarks or photos submitted by anonymous users could give rise to this sort of discovery demand and perhaps even to personal liability as a publisher. The same caution applies to Internet violations of personal privacy; of an accused person's right to a fair trial; of copyright protection or articles, photos or other created works, and to everything else that your or others may post on your own or someone else's site. …

Sunlight is the Best Disinfectant: Public Disclosure of Electoral Advocacy in Union Member Communications

In United States v. CIO (1948), the Supreme Court held that the statutory ban on direct union spending in federal elections could not be applied to electoral advocacy by leaders of an organization to the members of that organization. As a result, federal and state laws now generally exempt such internal communications from the definition of expenditure under campaign finance laws. Then, in its landmark 2010 decision Citizens United v. FEC, the Supreme Court declared the ban on direct corporate campaign spending itself unconstitutional. The Federal Election Commission soon thereafter announced the ruling would also apply to unions. There is now no doubt that an organization such as a union or a corporation may directly spend money on electoral advocacy. Given this framework, this Note argues that internal communications between the leaders of an organization – in particular, a union – and its members that directly advocate for or against the election of a particular candidate can and should be subject to mandated public disclosure.

Corporate Identity in Citizens United: Legal Fictions and Anthropological Theory

The United States Supreme Court's decision in Citizens United v. Federal Election Commission [2010] from the outset has been a contested, highly politicized case, where judicial interpretation affected more than just election finance law; the majority's opinion explicitly intervened in a wider political struggle over personhood and the boundaries of citizenship. This article moves beyond questions of legal doctrine to highlight the social–theoretical–political contexts of the decision and its consequences for anthropological understanding of American citizenship. I trace how the majority decision appropriated and reshaped a discourse of identity. In its first formulation in social movements, “identity” was offered as a positive basis for rights and inclusion; however, the Court's appropriation reformulated identity on a negative basis, barring both regulation and recognition of identity‐based claims by the State. It also went further than a traditional liberal demarcation of rights by specifically attributing agency and authoritative representation to corporate speech. Drawing on previous theoretical discussions of the corporate form and American citizenship and personhood, this article concludes that Citizens United not only allowed for new corporate power in the political sphere, but actively worked against the flourishing of a more humane and inclusive American citizenship in ways that legal anthropologists may wish to address as a matter of theory as much as politics.

United States, Inc.: Citizens United and the Shareholder Citizen

In a controversial decision that has continued to make national headlines in subsequent election cycles, the US Supreme Court’s ruling in the case of Citizens United v. Federal Election Commission struck down restrictions on contributions from the general treasury funds of corporations to political action committees (PACs) and other significant campaign finance reforms. This article examines the language of the majority opinion, concurrences, and dissents in the Citizens United decision in order to dissect the competing models of democratic participation, equality, and fairness. Through the co-optation of the language of Civil Rights and even radical feminism in terms of equality and recognition, the conservative justices in the majority dwell on the abstract rights of the person, even going as far as to suggest that there is no difference between corporate and human speech or between corporate and human speakers. Under the continuing ravages of global neoliberalism—what critics in the United States identify as the “Great Risk Shift,” the “consumerization of the republic,” and the financialization of the economy since the 1970s—this study posits the shareholder citizen, a new conception of citizenship that more accurately identifies the state’s obligations to and expectations of its subjects. The shareholder citizen incorporates significant yet unacknowledged changes in the way we currently think about our democratic society. The shareholder citizen realigns priorities with the interests of the corporate elites and investor classes, naturalizes corporate democracy as the model for political participation, and ultimately condones the vast restrictions on the agency of individual citizen shareholders, leaving them largely powerless in the political process. The conflation of the people with the market finds its utmost expression in the Citizens United ruling. This article examines how the popular conception of the shareholder reconstitutes citizenship, pushing aside political equality as a goal and privileging shareholder citizens instead.

Corporate Political Speech and Moral Obligation

In the wake of Citizens United v. the Federal Elections Commission, more companies are spending heavily on political speech, but the moral implications of doing so are not clear. Few business ethicists have directly addressed the moral legitimacy of corporate political speech and the conditions under which it may be morally permissible. My goal here is to outline the moral hazards associated with engaging in corporate political speech. I argue that whether one takes a narrow Friedman-style shareholder primacy view of managerial duty, a broader stakeholder view, or an even more wide-ranging political corporate social responsibility view of the moral duties of business, various moral hazards must be taken into account in determining the moral legitimacy of corporate political speech. I discuss a number of moral hazards endemic to corporate political speech and suggest ways in which business practitioners might avoid those moral hazards.

Connecting the Candidates: Consultant Networks and the Diffusion of Campaign Strategy in American Congressional Elections

Modern American political campaigns are typically conceptualized as �candidate-centered� and treated as conditionally independent in quantitative analyses. In reality, however, these campaigns are linked by professional consulting firms, which are important agents of campaign strategy diffusion within the extended party networks of the contemporary era. To test our hypothesis that consultants disseminate campaign strategies among their clients, we analyze new data on U.S. House elections derived from Federal Election Commission records. Using spatial autoregressive models, we find that candidates who share consultants are more likely to use similar campaign strategies than we would otherwise expect, conditional on numerous explanatory variables. These results, which largely withstand an extensive series of robustness and falsification tests, suggest that consultants play a key role in diffusing strategies among congressional campaigns.

Sunshinees Shadow: Overbroad Open Meetings Laws as Content-Based, Distinct from Campaign Finance Disclosure Laws, and Constitutionally Suspect

In this Article, Professor Mulroy discusses “strict” open meetings laws applicable in many states to local legislators — laws which restrict substantive discussion of government business even among two or three legislators (far short of a quorum) outside a properly noticed public meeting, and/or which contain no exceptions for sensitive, privacy-invasive topics which might legitimately warrant private deliberation at early stages. Such laws are surprisingly common and broad, and stand in stark contrast to the lack of such restrictions applicable to most state legislators and all federal legislators. Drawing on a novel Fifth Circuit case criticizing such laws, Prof. Mulroy’s prior Tennessee Law Review Article had argued that such laws are overbroad speech restrictions. This new Article draws on a new Fifth Circuit case upholding such laws, and analyzes two relatively new arguments in the defense of such laws. First, this Article argues that such strict “sunshine” laws cannot be defended by analogizing them to campaign finance disclosure laws upheld in the Supreme Court’s Citizens United case and its progeny, because the government interests justifying such disclosure laws do not apply with equal force to strict sunshine rules. In so doing, it discusses the 2014 Supreme Court decision in McCutcheon v. Federal Election Commission. Second, it argues that such laws are properly analyzed as “content-based” speech restrictions triggering “strict scrutiny” constitutional review. In so doing, the Article discusses the 2014 Supreme Court decision in McCullen v. Oakley. It synthesizes the surprisingly muddled Supreme Court guidance on when to analyze a speech restriction as content-based, criticizes part of the current doctrine on this question, and argues for a straightforward “purely facial” approach which always treats a law as content-based if the law’s application turns on the content of the speech involved. Along the way, it explains many of the counterintuitive, harmful effects of overbroad sunshine laws, including their tendency to chill discussion, hinder compromise, force inappropriate disclosure of sensitive information, breed widespread noncompliance and contempt for the law, and transfer power from legislators to unelected staff and lobbyists.

Analyzing Campaign Contributions in Context

Political campaign contributions are not made in a vacuum. Rather, contributions from individuals are affected by the political and legal environment experienced by potential donors. I study itemized contributions to candidates, parties, and political action committees (PACs) aggregated by congressional district for 1994-2006. The timing and competitiveness of presidential, congressional, and even state elections affect the expected benefits and opportunity costs of contributing to all types of committees, and this is reflected in the amounts contributed through different channels. Political party committees raising hard money contributions relied more on districts with high per capita income, education attainment, and urbanization after the Bipartisan Campaign Reform Act (BCRA) than before, but were still less dependent on these districts than soft money committees before the BCRA. Overall, the BCRA led to less reliance on districts with high socioeconomic status as sources of itemized contributions to committees regulated by the Federal Election Commission.

Building a Record for the Next Court

Prepared for Symposium on Future of Campaign Finance Reform hosted by the Duke Journal of Constitutional Law and Public Policy and Center on Law, Race, and Politics. This article considers the evidence that should be collected and developed to support the next generation of campaign finance reform before the next Supreme Court. It discusses but ultimately sidesteps theoretical debates over rationales for reform, focusing instead on the practical questions likely to be faced by future policymakers, lawyers, and expert witnesses. Drilling down into the ample evidentiary record in McConnell v. Federal Election Commission, the article addresses the evidence that should be amassed by supporters of future regulation. This type of evidentiary record will be essential both in formulating the next generation of campaign finance reforms and in defending them in court. The article argues that, regardless of whether one favors an anti-corruption or egalitarian rationale for regulation, the evidentiary record should focus on conflicts of interest – in particular, on whether a reasonable legislator would feel pressure to act in way that is different from the preferences of her constituents or the public interest. This is something more than a showing of unequal access, but something less than a showing of actual influence on policymaking. In the near term, these suggestions are designed to help define a research agenda for qualitative and quantitative empirical researchers. In the long term, they offer a roadmap for legislators shaping and lawyers defending future regulations before a Supreme Court less reflexively antagonistic to reform than the current one.

Conformity Effects and Geographic Polarization: Evidence from an Event-Study Analysis of Residential Mobility in the U.S.

We propose that individuals are more politically active in more like-minded social environments. To test this hypothesis, we combine administrative data from the Federal Election Commission and the United States Postal Service. We identify 45,000 individuals who contributed to Barack Obama’s 2008 presidential campaign and who changed residences either before or after the 2012 election cycle. We examine whether living in an area with a higher share of Democrats causes higher contributions to Obama. We disentangle the direction of causality by exploiting the timing of residential mobility with an event-study analysis. We find that conformity effects are economically significant: increasing the share of Democrats by 1% increases the contribution to Obama by 0.11% (p-value

"Let's Get Together": What Tax Should Learn About Collaborative Regulation Development

High school civics classes and Schoolhouse Rock! create an image of democracy and lawmaking as resting on a foundation of voter participation in the law-making process, either through the election of representatives or the casting of votes on a ballot issue. However, over time Congress has delegated to administrative agencies substantial authority to make law. As the government and society have become more complex, Congress has had to delegate much of its legislative authority to administrative agencies just to keep up with the growing need for federal regulation. Indeed, administrative agencies create many times more laws than Congress each year. These agencies are part of the Executive Branch of government. Each agency is usually created to address a single area, i.e., the Environmental Protection Area and the Federal Election Commission. Their Congressional mandate usually allows an agency to operate largely independently and allows an agency to develop specialized knowledge and technical expertise with respect to the assigned subject matter; expertise that Congress would be unable to develop in light of the very broad areas in which Federal legislation operates. To protect against agency overreaching and ensure that the lawmaking function remain democratic, administrative rulemaking procedures must be open, transparent, and accessible.

“LET'S GET TOGETHER”: COLLABORATIVE TAX REGULATION

High school civics classes and Schoolhouse Rock! create an image of democracy and lawmaking as resting on a foundation of voter participation in the law-making process, either through the election of representatives or the casting of votes on a ballot issue. However, over time Congress has delegated to administrative agencies substantial authority to make law. As the government and society have become more complex, Congress has had to delegate much of its legislative authority to administrative agencies just to keep up with the growing need for federal regulation. Indeed, administrative agencies create many times more laws than Congress each year. These agencies are part of the Executive Branch of government. Each agency is usually created to address a single area, i.e., the Environmental Protection Area and the Federal Election Commission. Their Congressional mandate usually allows an agency to operate largely independently and allows an agency to develop specialized knowledge and technical expertise with respect to the assigned subject matter; expertise that Congress would be unable to develop in light of the very broad areas in which Federal legislation operates. To protect against agency overreaching and ensure that the lawmaking function remain democratic, administrative rulemaking procedures must be open, transparent, and accessible.

Small Donors in Congressional Elections

Candidates raise substantial sums of money to compete in modern federal elections. Many electoral reform efforts focus on curbing the perceived undue influence of campaign donations by the wealthy. An intriguing new reform direction encourages small donor participation. To understand the potential effects of such reforms we utilize new internal Federal Elections Commission campaign finance data to examine patterns of small donor giving to candidates in the 2006 to 2010 congressional elections. We find encouraging small donors may be democratizing by expanding the scope of participation, in that the supply of small donors is unrelated to income levels. Unlike large donors who tend to give to incumbents, small donors give indiscriminately to incumbents, their challengers, and open seat candidates. Small donors give for the instrumental reason to affect the most competitive elections. However, we temper reformers' enthusiasm, finding that ideologically extreme incumbents tend to raise more money from small donors.