“Trump, Twitter, and the Russians: The Growing Obsolescence of Federal Campaign Finance Law”

Tony Gaughan has posted this draft on SSRN (forthcoming, Southern California Interdisciplinary Law Journal).  Here is the abstract:

Since the 1970s, federal campaign finance law has been built on four pillars. The first is contribution limits on donations to candidate campaigns and political party committees. The contribution limits are designed to reduce the role of money in politics by preventing large donors from corrupting elected officials. The second is the ban on foreign contributions to American political campaigns. The prohibition is intended to prevent foreign influence on American elections and to ensure that candidates rely exclusively on American sources of support for getting their campaign messages out to voters. The third is the mandatory public disclosure of the identities of campaign contributors. Disclosure laws are intended to enable voters to evaluate the sources of a candidate’s support and to guard against corruption. The fourth pillar is the Federal Election Commission, which is charged with enforcing the law in an effective and bipartisan manner.

The 2016 presidential campaign made it starkly apparent that all four pillars of federal campaign finance law have become woefully outdated in the age of the internet, social media, and non-stop fundraising. First, contribution limits have not only failed to reduce the role of money in politics but have instead severely distorted our political system. Second, the federal ban on foreign contributions failed to prevent a massive level of foreign intervention in the 2016 presidential election. Third, FECA’s requirement that all contributions to political committees be reported and publicly disclosed no longer keeps the public adequately informed. Fourth, FECA’s foundational presumption that the FEC would enforce the law in a bipartisan and vigorous fashion has collapsed amid finger-pointing, personal acrimony, and profound ideological divisions among the commissioners.

A vestige of the post-Watergate reforms of the 1970s, FECA no longer adequately regulates the campaign finance world of 21st century American politics. The time has come for a sweeping reform and restructuring of the law. This article proposes 4 major reforms to modernize federal campaign finance law: the elimination of FECA’s contribution limits, the closing of the dark and gray money loopholes, the clarification and expansion of federal regulation of foreign government influence on American elections, and the fundamental restructuring of the FEC. By adopting those reforms, FECA will finally be brought out of the 1970s and into the age of the internet, iPhones, Twitter, and Facebook.

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