Aggregate Limits in the States

Forthcoming in Democracy by the People: Reforming Campaign Finance in America (Timothy K. Kuhner and Eugene D. Mazo eds., Cambridge University Press, 2017) 

Abstract: 

This chapter, written for an edited volume on campaign finance, examines aggregate contribution limits and their potential to combat corruption. Base limits cap the amount one can contribute to individual candidates, while aggregate limits cap the amount one can give to all candidates. As I explain, base limits should tend to affect the magnitude of corrupt acts while aggregate limits should tend to affect their frequency. The Supreme Court failed to appreciate that second point in McCutcheon v. FEC, concluding that aggregate limits serve no anti-corruption purpose and violate the Constitution. Many observers interpreted McCutcheon to foreclose all aggregate limits, and some states stopped enforcing their aggregate limits as a result, but that reaction is unjustified. McCutcheon does not reach beyond federal law, and aggregate limits remain viable at sub-national levels of government. They offer an under-theorized but important mechanism for reducing corruption.

Entrenchment, Incrementalism, and Constitutional Collapse

Virginia Law Review, Forthcoming

Abstract: 

Entrenchment is fundamental to law. Grand documents like the U.S. Constitution, and mundane ones like city and corporate charters, entrench themselves against change through supermajority rules and other mechanisms. Entrenchment frustrates responsiveness, but it promotes stability, a rule of law virtue extolled for centuries. It does so through a straightforward channel: entrenched law is difficult to change. Scholars and legal designers have long understood this idea, which can be called the first status quo bias of entrenchment. I show that a second bias lurks: entrenchment confines changes that do take place to incremental steps. As entrenchment deepens, the scope of potential change to law collapses on the status quo. This has implications for constitutional law, especially the debate about Article V and the separation of powers, both of which shield the Constitution from change more than scholars realize. It also illuminates several questions, especially in comparative constitutional law, such as why constitutions remain unpopular after amendment. Finally, it generates a theory of constitutional failure. When voters’ preferences evolve consistently in one direction, entrenched law eventually becomes as unstable as ordinary law, only less popular. Thus, entrenchment buys neither stability nor responsiveness. Because entrenchment confines legal change to incremental steps, amendment cannot correct the problem. This recasts fundamental questions of legal design in new light, and it may explain why some constitutions endure while others collapse.