Gene Mazo has posted this draft on SSRN (forthcoming, Timothy K. Kuhner and Eugene D. Mazo (eds.), Democracy by the People: Reforming Campaign Finance in America). Here is the abstract:
Each time reformers have sought to regulate campaign finance by statute, they have witnessed their efforts unravel before the Supreme Court. Given the Court’s hostility toward campaign finance restrictions, some scholars have come to view the legislative path as littered with pitfalls and have begun advocating for campaign finance solutions that are not legislative in nature. Congress does not need to pass a statue to address the problems of our campaign finance system. Instead, it can simply turn to its internal procedural rules. Such procedural rules are easier to pass, and they can be designed to have many of the same regulatory effects as more traditional statutory reforms. Moreover, Congress’s legislative procedural rules are much harder to subject to judicial review. As such. using legislative procedural rules to regulate money in politics may provide a path for Congress to get around some of the recent problems that its statutory reforms have faced.
One particular innovation that Congress could use to regulate campaign finance is legislative recusal. Legislative recusal rules, enacted separately in the House and Senate, would preclude members of each chamber from voting on any legislation that presents a member of Congress with a significant conflict of interest. For example, if a Super PAC spends a large sum of money to run ads on behalf of a candidate and its funders happen to have a strong interest in a specific piece of legislation, that congressional candidate, once elected to office, would be deemed to have a conflict and would be precluded from voting on such legislation.
In the early days of our republic, the very first House of Representatives adopted a legislative recusal rule. Today, legislative recusal rules exist in many state legislatures. Recusal rules are also common for judges and found throughout the judiciary, both at the state and at the federal level. The Senate and House have very different procedural rules, and legislative recusal rules that address campaign finance would have to be adopted separately in each house. A model for what these rules might look like could be borrowed from the judiciary. Importantly, because such recusal rules, in regulating the vote of a member of Congress, would only control legislative “outputs,” they would not interfere with the ability of donors or spenders to do what they wish with their money. As such, they would not impinge on anyone’s First Amendment rights. This is one of the most important reasons why campaign finance reformers should champion this path.
There has recently been a growing literature on how private ordering and private action can be used to make independent expenditure spending prohibitively expensive. For example, Ganesh Sitaraman has written about how private contracting between political candidates can be used to influence outside independent expenditure spending. Similarly, Nick Warshaw has explained how “super PAC insurance” can be used to threaten outside expenditure groups, whose spending activity would trigger an insurance premium payout to a candidate and thus provide the insured candidate with greater spending in response. These and other private ordering innovations seek to make it more expensive for independent expenditure groups to influence the outcome of an electoral campaign. Private ordering schemes are designed to ratchet up the cost of independent expenditures and make it more painful for entities like Super PACs to function.
Legislative recusal rules have similar goals. Such rules seek to diminish the influence that any particular political spender has. They do so by separating independent campaign spending from the ability of the officeholder to vote in favor of the spender’s legislative goals. If politicians are not able to vote for the financial interests of those who support them, we would have to worry less about donors and spenders trying to influence politicians nefariously, for the legislative votes of those who are the recipients of a donor’s or spender’s largesse would be taken away.
In 2000, John Copeland Nagle wrote about how legislative recusal rules could be used to combat the possible corruption that comes from large campaign contributions. Nagle proposed a solution whereby contributors should be allowed to give whatever they wish to political candidates, but successful candidates would then have to recuse themselves from voting on any legislation that directly affects those interests. More recently, Justin Levitt has suggested that legislative recusal rules might be used to combat independent expenditure spending as well, by making a winning candidate ineligible to take legislative action unusually benefiting the sponsor of the expenditure in question. Despite the efforts of these able scholars, however, our theory and knowledge of how legislative recusal rules should work in practice remains largely underdeveloped.
This article discusses how legislative recusal rules should be implemented in each house of Congress, how these rules should be structured to regulate campaign finance, and what advantages such rules have over statutory reforms. Part I discusses the source of Congress’s internal procedural rules and how controversies concerning legislative procedure have been handled by the courts. Part II looks at the judicial recusal rules used by the judiciary, as well as at some of the criticisms levied against current judicial recusal mechanisms. Part III proposes a system of regulating campaign finance through the adoption of legislative recusal rules in Congress. It addresses questions concerning when such recusal rules should take effect, what activities would trigger them, and who would make the decision of whether a legislator must recuse himself in a particular instance. Finally, Part IV discusses the procedures that would need to be followed in each house of Congress for the rules proposed here to be adopted.