The End of Campaign Finance Law: The Way Forward

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.

Campaign finance regulation is ex ante restriction of money in the political process. Campaign finance regulation limits, channels, and otherwise conditions how campaign money enters the political process in the first place. Campaign finance regulation guards prophylactically against corruption by complicating the ability of candidates and officeholders to receive as an initial matter the quids of a potential quid pro quo exchange. The constitutional problem with this type of ex ante regulation of campaign finance money is that it restricts political speech as well. Campaign finance money is spent by parties and candidates ultimately to persuade voters through political speech. Regulation therefore inevitably discourages the production of this core First Amendment activity.

In Citizens United, the Court acted on the First Amendment concern about campaign finance regulation by construing very narrowly what constitutes corruption as sufficient constitutional grounds for government regulation. The Court defined corruption strictly in terms of the risk of actual quid pro quo exchanges and found that independent expenditures by definition never implicate this form of corruption. The Court’s unconditional language along these lines begs an understanding of Citizens United as generalized skepticism about the influence of money and the need to regulate it in the political process.

However, the Court’s claim that independent expenditures categorically pose no risk of actual or apparent corruption is belied flatly by its ruling in Caperton v. Massey a year earlier. There, the Court decided that due process required recusal of a state supreme court justice who had earlier received during his election campaign the benefit of roughly $3 million in independent expenditures from a principal in the case. The Court in Caperton obviously believed that the independent expenditures in the case presented a reasonable probability of bias that moved the majority to impose, as a constitutional matter, the extraordinary remedy of judicial recusal.

I argue that the different results in Caperton, where the Court found independent expenditures pose a corruption worry, and Citizens United, where the Court held that they do not as a matter of law, are not actually motivated by conflicting judgments from the Court about the likelihood of corruption in the two cases. Instead, the difference between the two cases is the ex post treatment of that corruption risk in Caperton instead of the ex ante treatment of the same risk through campaign finance regulation in Citizens United. Caperton signals that the Court actually may be sympathetic to concerns about campaign finance corruption, even from independent expenditures, but only when the responsive regulation is structured to cabin the effects of campaign money ex post, rather than restrict the entry of campaign money ex ante. The remedy in Caperton was judicial recusal after the election, when the campaign supporter’s case arrived before the elected candidate. Lost amid an otherwise unconvincing attempt to distinguish Caperton, the Court in Citizens United explained that “Caperton’s holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned.” This latter concern has nothing to do with the Court’s preoccupation with corruption in Citizens United, but it helps explain why the majority would be willing to allow recusal as an ex post measure after the independent expenditures had already been made.

Caperton therefore suggests the way forward for campaign finance reform. Ex post regulation addresses the corruption risk only after speech has already occurred and benefited the democratic discourse, while ex ante regulation of money’s entry into the political system addresses corruption only by discouraging speech. The Court affirmed its sympathy for the ex post regulation of corruption in another case decided only a month after Citizens United. In Skilling v. United States, the Court upheld the application of the federal mail fraud statute to criminal prosecution of bribery and kickback schemes involving a public official. Bribery, of course, represents the most egregious and explicit form of quid pro quo corruption. Bribery laws apply in  reasonably clear instances of actual quid pro quo exchanges after proof of the fact, rather than seeking to complicate ex ante the possibility of quid pro quo exchange as a preventive measure. Unlike campaign finance regulation, ex post prosecution of bribery has little direct impact on political speech. Indeed, bribery prosecutions typically involve payments directly to officeholders for their personal enrichment, as opposed to campaign finance contributions dedicated for campaign advocacy. Bribery prosecutions thus rarely implicate speech concerns, and the Court had little hesitation in saving the federal prosecution of bribery from a vagueness challenge.

A few legal scholars are turning toward yet another type of ex post regulation of campaign finance in lobbying reform. Lobbying reform is ex post regulation of campaign finance money because lobbying is tightly linked to campaign financing as part of an overarching effort by contributors to influence government policy in their interest. Campaign finance support for an officeholder does not necessarily “buy” her vote or decision in a direct way, but the empirical evidence strongly suggests that campaign finance support buys enhanced lobbying access to officeholder. Lobbying reform does not restrict campaign finance and corruption on the front end by blocking the initial quid from contributor to officeholder. It instead complicates the ability of contributors and officeholders to complete the reciprocating payoff on any quid pro quo arrangements, direct or subtle, on the back end.

Even as ex post regulation of campaign finance, lobbying reform faces its own constitutional challenges that seem to take their cues from Citizens United. Regulation of the lobbying process, in fact, may be even more analytically complex and more difficult under the First Amendment than regulation of campaign finance. Given these concerns, in addition to the intrinsic connection with campaign finance, it is not surprising that already courts have struck down lobbying regulation on the basis of Citizens United. For instance, in Brinkman v. Budish, a federal district court cited Citizens United for its skeptical reading of the government’s interest in preventing corruption through an anti-revolving door restriction that prohibited former assembly members from state lobbying activity for one year.

However, if I am right, the Supreme Court may not be as hostile to such lobbying restrictions as federal courts so far appear to anticipate. As I have argued, Citizens United is motivated sub rosa less by empirical judgments about some absence of corruption risk in the political process, but instead by concerns about the structure and attendant costs of ex ante regulation of that risk. Ohio’s anti-revolving door regulation avoids the most important of these concerns by restricting only ex post the ability of lobbyists to cement reciprocation by officeholders on the back end. In short, the Court’s treatment of lobbying regulation may reveal that Citizens United is not a negative judgment about the cognizability of corruption as a constitutional concern that should encourage general skepticism about ex post regulation of corruption. That is the bright side of Citizens United, and suggests the way forward, for those concerned about money in the political process.

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