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This report reviews the current state of campaign finance law, explains how the Supreme Court has considered evid­ence in campaign finance cases, and iden­ti­fies the key empir­ical ques­tions in campaign finance law that have been or need to be answered.

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Intro­duc­tion

In recent years, Amer­ican elec­tion spend­ing has soared but has come from fewer donors giving more money. Candid­ates now view the support of unlim­ited, some­times anonym­ous, outside entit­ies such as super PACs as prac­tic­ally essen­tial to compete. Against this back­drop, Amer­ic­ans have consist­ently expressed the concern that wealth unfairly influ­ences policy outcomes.

Yet, as power­ful as these devel­op­ments may seem, it is import­ant to remem­ber that their legal justi­fic­a­tion emerged for the most part from just a hand­ful of recent 5-to-4 decisions by the U.S. Supreme Court begin­ning in 2007. That five-justice major­ity has since lost one member. Whatever the polit­ical context of filling the vacancy, to assume change will not come would be to miss a signi­fic­ant oppor­tun­ity to shape the role of money in Amer­ican elec­tions.

This oppor­tun­ity does not depend on adopt­ing a partic­u­lar advocacy stance, but merely requires a commit­ment to produce object­ive and reli­able empir­ical research relev­ant to the major ques­tions of campaign finance law. The oppor­tun­ity exists because, simply put, the five-justice major­ity in its sweep­ing decisions to erad­ic­ate certain contri­bu­tion limits, corpor­ate spend­ing bans, and public finan­cing features, almost never considered or cited support­ing evid­ence. Though the Court has expressed partic­u­lar views about the ways polit­ics and campaign finance regu­la­tion work, a close read of the justices’ opin­ions reveals strik­ingly little consid­er­a­tion of the actual effects of money or regu­la­tion on the polit­ical process. This short­com­ing may explain the discon­nect between the Court’s and the general public’s under­stand­ings of money in polit­ics. While a change in member­ship will not guar­an­tee a new campaign finance juris­pru­dence, a newly composed Court may be will­ing to recon­sider recent preced­ents when presen­ted with sound data address­ing the unsup­por­ted assump­tions that under­girded those decisions.

This paper aims to identify the key factual assump­tions and conclu­sions that serve to justify the most import­ant campaign finance decisions, cata­log relev­ant exist­ing research, and suggest further stud­ies to test such assump­tions and conclu­sions. Such stud­ies could aid not only litig­ants and courts as they consider new campaign finance cases, but also policy makers, as they seek to under­stand prob­lems, craft the best solu­tions, and build records to defend those solu­tions against virtu­ally inev­it­able consti­tu­tional chal­lenges.

Several notable efforts to advance empir­ical research about money in polit­ics have already emerged. In 2013, the Campaign Finance Insti­tute and the Bipar­tisan Policy Center published the expans­ive An Agenda for Future Research on Money in Polit­ics in the United States, call­ing for detailed study of public finan­cing, campaign spend­ing disclos­ure, and inde­pend­ent spend­ing after Citizens United, among other things. One of the lead­ers of that charge, Michael Malbin, has also provided deep analysis of the effects of small donor public finan­cing systems. Lynda Powell has shown, through a massive survey-based study, when and how campaign contri­bu­tions affect state legis­lat­ors. In 2014, Renata Strause and Daniel Tokaji published an import­ant paper urging research­ers to gather legis­lator testi­mony, social science research, and press reports to show the conflicts of interest that campaign contri­bu­tions and expendit­ures can create.10 But a system­atic approach to align­ing object­ive research efforts with the several crit­ical legal ques­tions of money in polit­ics will increase both the social value of such research and the last­ing effic­acy of legal reform.

This report proceeds in three parts. Part I reviews the current state of campaign finance law, discuss­ing the most import­ant Supreme Court hold­ings and how they limit options for reform. Part II explains how the Court has considered evid­ence in decid­ing campaign finance cases, offer­ing obser­va­tions about when evid­ence has been most import­ant and how it can change outcomes. Finally, Part III iden­ti­fies the key empir­ical ques­tions in campaign finance law, noting exist­ing relev­ant research and suggest­ing addi­tional research that would aid courts and policy makers.