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Analysis

Electoral Integrity In Campaign Finance Law

In McCutcheon v. FEC, four justices of the U.S. Supreme Court described the government’s interest in passing campaign finance laws in terms of “electoral integrity” but did not fully flesh out what the concept might mean for this area of law.

April 21, 2017

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.

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INTRO­DUC­TION:

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.  

(Image: Think­stock.com)  

 

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