This first appeared as a law review article, “Electoral Integrity In Campaign Finance Law,” published in the NYU Journal of Legislation and Public Policy in April 2017.
In a series of recent 5–4 decisions like Citizens United and McCutcheon, the Roberts Court swept aside decades of campaign finance law based on an ever narrower interpretation of the anticorruption interest traditionally used to justify such laws under the First Amendment. The dissenters in those cases have coalesced around an alternative idea of the government’s interest in regulation focused on the concept of “electoral integrity,” but have not fully fleshed out what it might mean for campaign finance law.
In this article for the NYU Journal of Legislation and Public Policy, Daniel I. Weiner and Benjamin Brickner begin to fill that gap by highlighting four well-established criteria for judging whether elections have integrity with particular relevance to money in politics: representation, participation, competition, and information. The article goes on to consider how courts might use these criteria to judge the constitutionality of a range of policies, including contribution and spending limits, public financing, and disclosure requirements. While noting that a number of hard doctrinal questions would remain even under an electoral integrity framework, the article concludes that taking electoral integrity seriously as a government interest still has the potential to reshape the Court’s approach to campaign finance in a more realistic, factually-grounded direction.
American campaign finance law is at a crossroads. In a series of controversial five-to-four decisions over the last decade, a new majority of the Supreme Court aggressively pared back the anti-corruption rationale that the Court traditionally has invoked to uphold efforts to regulate money in politics, invalidating or endangering many important protections and clearing the way for billions in new campaign spending. They did so over the vigorous dissents of their four colleagues, who advocated a more nuanced and deferential approach focused on the realities of how money impacts the integrity of the electoral process. The new majority’s approach has not been popular. Roughly seventy-eight percent of Americans disapprove of the Court’s landmark ruling in Citizens United v. FEC and would like to see it overturned. Limits of the sort that Citizens United struck down enjoy broad support across the ideological spectrum, including from seventy-two percent of Republicans in one survey. Bipartisan anger regarding our political system’s bias toward wealthy elites was one of the most powerful forces propelling the campaigns of both President Donald J. Trump and Senator Bernie Sanders in 2016. One way or another, the Court’s current path is not sustainable. This Article examines how the Court might one day expand on the concept of electoral integrity championed by the dissenters in its recent rulings to fashion a new campaign finance jurisprudence rooted in core First Amendment values and its own wider body of precedent on the law of democracy.
Forty years ago, Buckley v. Valeo held that campaign finance limits infringe core expressive and associational rights under the First Amendment, but that they may still survive judicial review if the government can show they are justified to fight “corruption.” To the consternation of many, Buckley rejected other potential justifications for limiting private campaign funding—most notably, the need to promote political equality. But for decades, the Supreme Court at least took a broad view of what corruption actually means. In McConnell v. FEC in 2003, for example, the Court defined corruption to cover any type of “undue influence” over those in power. Relying on this definition, it largely upheld the significant expansion of federal campaign finance rules that Congress passed in the Bipartisan Campaign Reform Act of 2002 (“McCain-Feingold”).
Beginning shortly after McConnell was decided, however, a new majority—under the leadership of a new Chief Justice, John Roberts—led a profound retrenchment. In Citizens United v. FEC, the new majority proclaimed that the “ingratiation and access” connoted by the concept of undue influence are “not corruption.” Henceforth, campaign finance limits could target only literal quid pro quo exchanges—akin to outright bribery. Citizens United held—without the benefit of any significant record—that corporate “independent expenditures” do not create a sufficient risk of this sort of corruption and thus cannot be limited, kicking off the Super PAC era in which we live today. In McCutcheon v. FEC in 2014, a plurality of the Court extended the reasoning in Citizens United beyond independent spending to invalidate limits on how much any one donor can give directly in total to all federal candidates and parties—again without the benefit of a record. The McCutcheon plurality’s reasoning in turn could have implications for a variety of other limits and restrictions.
Even as it eviscerated the anti-corruption rationale for campaign finance regulation, the new majority also doubled down against the alternative rationale of political equality. In 2011, for instance, it struck down Arizona’s system of subsidizing publicly-financed campaigns based on the amount spent by a candidate’s opponents—known as “trigger-matching”—labeling even this modest effort to level the electoral playing field by stimulating more speech a “dangerous enterprise” at odds with First Amendment values. With Davis v. FEC in 2008, the Court invalidated higher contribution limits for candidates facing wealthy self-financed opponents based on the same reasoning.
The rest of this piece can be read at NYU Journal of Legislation & Public Policy.