In this final post of the series on my forthcoming article The End of Campaign Finance Law, 98 Va. L. Rev. (2012), I argue that Citizens United signals the way forward to a new approach for the regulation of campaign money in the political process. Although the Court is decidedly hostile to ex ante restriction of campaign money through traditional campaign finance regulation, the Court may be much more sympathetic to ex post regulation of the influence of campaign money in the legislative process on the back end. I thus conclude with a surprisingly optimistic lesson for those concerned about the influence of money in the political process. Citizens United’s unconditional skepticism about the government’s anticorruption interests may be cabined to campaign finance regulation and does not necessarily reflect generalized hostility to other forms of anticorruption reform that, unlike campaign finance regulation, apply only ex post. Continue reading The End of Campaign Finance Law: The Way Forward
Yesterday, in my first post of this series on my forthcoming article The End of Campaign Finance Law, 98 Va. L. Rev. (2012), I argued that Citizens United’s importance rests less on its direct impact on corporate electioneering than on its larger implications for the general de-regulation of independent expenditures. Today, I explain what this de-regulation of independent expenditures meant for the practice of campaign finance in time for the 2010 elections and beyond.
The 2010 midterm elections provided a glimpse of what the de-regulation of independent expenditures promises. The 2010 elections were by far the most expensive in history. Roughly $4 billion were spent on federal races in 2010, compared to $2.6 billion spent on the last midterm elections in 2006. Also notable is that corporate money, as far as we can tell, accounted for only a small percentage of federal campaign spending in 2010. Few companies reported independent expenditures of their own, and a study by Public Citizen reported last October that total contributions by all companies accounted for less than $13 million.
The biggest change in campaign finance in 2010 was the involvement of outside groups formally unconnected to parties and candidates. Spending by these outside groups increased 168 percent over 2008 in House races and 44 percent in Senate races. Seventy-two super-PACs formed in the short time between July 2010 and the fall midterm elections and still spent more than $80 million. An estimated $138 million came from groups that did not disclose their contributors. In other words, the first post-Citizens United elections did not feature the avalanche of corporate spending that many feared following the decision, but the elections featured clear increases in spending by outside groups and particularly those groups that do not disclose their contributors.
What has occurred since Citizens United can be described as “reverse hydraulics.” As Citizens United rolled back campaign finance law as it stood for decades, political money has rushed back to newly de-regulated channels like water finding its own level through the newly opened, more direct channels. Continue reading The End of Campaign Finance Law: Part II
Many thanks to Rick Hasen for this opportunity to guest blog about my forthcoming article, The End of Campaign Finance Law, 98 Va. L. Rev. (2012). At Rick’s invitation, I’m writing a short series of posts this week that track my article. The title of the article is deliberately provocative and signals its identification of Citizens United v. FEC as a pivotal moment in campaign finance law, stripping away much of campaign finance law and regulation as we long knew it.
In today’s post, I set out what I think is the far-reaching doctrinal impact of Citizens United, which goes well beyond the impact on corporate electioneering that garnered so much public attention. Tomorrow, I’ll explain a bit about the practical implications for the practice and regulation of campaign finance. Finally, I’ll close by discussing what Citizens United tells us about the Court’s views generally about political corruption and by arguing that the decision actually points new ways forward for anti-corruption regulation beyond campaign finance law, in areas like bribery and lobbying.
Citizens United, as we all know, sparked an unusually robust public debate about the constitutional rights of corporations and their role in politics. The decision spurred MoveOn.org to organize protest rallies across the country as a “breaking point” that could “warp our democracy forever if we let it do so.” However, almost all the public excitement about Citizens United focused on the question whether corporations could be restricted from drawing on treasury funds to pay for political campaigning in the form of independent expenditures. The irony is that the profound doctrinal impact of Citizens United, the most important campaign finance case since Buckley v. Valeo and the most publicly debated case in years, was largely missed in this public debate. Continue reading The End of Campaign Finance Law