Elizabeth Reese has posted this draft on SSRN (forthcoming, Houston Law Review). Here is the abstract:
The rich are getting richer, and money talks. Since Citizens United, there has been widespread outrage about the role of money in politics. Advocates for campaign finance reform claim that our democracy is broken—that our election system is unequal, corrupt, and that representatives no longer represent the peoples’ interests. The campaign finance debate provokes important questions about the role of class, speech, power, and discourse in our democracy. However, many critics of money in politics inexplicably ignore that ultimately money doesn’t decide elections—voters do. Actual voter behavior is inexplicably ignored or discretely dismissed. In election after election, year after year, voters go to the polls and exercise their power of self-governance to choose representatives that—according to these scholars and advocates—don’t represent them. How do the critics of big money in politics explain what the voters are doing? Are purported populists implicitly dismissing the legitimacy of voters’ choices? Unless we are prepared to dismiss voter autonomy, it is very difficult to criticize our current system without criticizing democracy itself.
This Article discusses the need to refocus on the people in the campaign finance debate and argues that reformers risk becoming surreptitiously elitist without sufficient confrontation with certain paternalistic assumptions about voter preferences and behavior. It further suggests that unless the campaign finance debate reckons with the more complex realities of voter behavior, we will at best limit the creativity and effectiveness of our potential policy solutions and at worst inadvertently enshrine anti-populist values into policy reforms or constitutional doctrine.