Campaign Finance Reform Without Law

Author:Robert Yablon
Position:Assistant Professor of Law, University of Wisconsin Law School
Pages:185-243
SUMMARY

Conventionally understood, campaign finance reform is a matter of public regulation. Reformers believe that, without adequate government intervention, wealthy individuals and entities are destined to exert outsized influence over elections and governance. Propelled by that belief, they have spent decades advocating regulatory fixes, with relatively little to show for it. Many existing regulations ... (see full summary)

 
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185
Campaign Finance Reform Without Law
Robert Yablon*
ABSTRACT: Conventionally understood, campaign finance reform is a
matter of public regulation. Reformers believe that, without adequate
government intervention, wealthy individuals and entities are destined to
exert outsized influence over elections and governance. Propelled by that belief,
they have spent decades advocating regulatory fixes, with relatively little to
show for it. Many existing regulations are watered down and easy to
circumvent. Efforts to bolster them have repeatedly hit doctrinal and political
roadblocks—obstacles that are more formidable today than ever before.
This Article seeks to shift campaign finance discourse toward private
ordering. Because scholars and reformers have long focused on public
regulation, they have largely overlooked possible private correctives. The
Article maps that uncharted terrain, revealing an array of extra-legal
mechanisms that at least somewhat constrain money’s electoral clout. This
survey suggests that numerous private actors have incentives and capacities
to implement additional extra-legal reform. The Article then sketches several
potential private interventions, and it assesses the interplay between public
regulation and private reform. Private reform is no silver bullet, but to ignore
private ordering even as public regulation flounders makes little sense.
Especially given the significant constraints on public intervention, it is vital
for campaign finance scholars and reformers to look beyond the law.
I.INTRODUCTION ............................................................................. 186
II. THE PROBLEM OF MONEY AND THE PROJECT OF REFORM ............ 193
III.THE LIMITS OF PUBLIC REGULATION ........................................... 198
*
Assistant Professor of Law, University of Wisconsin Law School. For helpful discussions
and feedback at various stages of this project, I thank Andrew Coan, Joey Fishkin, Bruce Freed,
Adam Lioz, Lisa Marshall Manheim, Nate Persily, Dave Poz en, Mir iam Seif ter, Ganesh Sitaraman,
Mike Wittenwyler, and numerous workshop participants at the Indiana University Maurer School
of Law Big Ten Junior Scholars Conference, the University of Wisconsin Law School Faculty
Workshop, and the Yale Law School Tenth Reunion Weekend Workshop. I also thank Anna
Peterson for excellent research assistance throughout and Jared Mehre for valuable help as I
completed the project
186 IOWA LAW REVIEW [Vol. 103:185
A.DOCTRINAL LIMITATIONS ........................................................ 199
1.Expenditure Limits ....................................................... 200
2.Contribution Limits ...................................................... 200
3.Public Financing ............................................................ 202
4.Disclosure Requirements .............................................. 204
B.POLITICAL LIMITATIONS ......................................................... 205
C.PRACTICAL LIMITATIONS ......................................................... 208
IV.LOOKING BEYOND THE LAW ......................................................... 209
A.PRIVATE ORDERING IN ACTION ................................................ 210
1.Limiting Big Money ...................................................... 210
2.Diluting Big Money’s Influence ................................... 217
3.Minimizing Big-Money Abuses ..................................... 222
B.OPPORTUNITIES AND CHALLENGES FOR PRIVATE REFORM ......... 225
V.TOWARD A PRIVATE REFORM AGENDA .......................................... 229
A.SHIFTING SOCIAL NORMS ......................................................... 229
B.FIGHTING BIG MONEY WITH BIG MONEY .................................. 233
VI.BROADER IMPLICATIONS ............................................................... 239
A.LAWS ROLE IN CAMPAIGN FINANCE ......................................... 239
B.THE HYDRAULICS OF PRIVATE CAMPAIGN FINANCE REFORM ..... 241
VII. CONCLUSION ................................................................................ 243
I. INTRODUCTION
Discourse about campaign finance reform is almost invariably discourse
about government regulation. Those concerned about the role of money in
elections have long sought to change the system by changing the law. This has
never been an easy project, and today the task seems almost Sisyphean. Recent
campaign finance jurisprudence has narrowed the universe of constitutionally
permissible regulation, and that trend is likely to continue in the years ahead.
At the same time, political prospects for legal reform at the federal level and
in many states are bleak. In the realm of campaign finance, we appear to have
entered an anti-regulatory era.1
While some celebrate the recent deregulatory trend and urge a further
rollback of campaign finance laws,2 many others are disillusioned.
Commentators often portray a campaign finance system unconstrained by law
1. See, e.g., Michael S. Kang, The End of Campaign Finance Law, 98 VA. L. REV. 1, 6 (2012).
2. See, e.g., Joel M. Gora, In Defense of “Super PACs” and of the First Amendment, 43 SETO N
HALL L. REV. 1185, 1207 (2013); Bradley A. Smith, Separation of Campaign and State , 81 GEO.
WASH. L. REV. 2038, 2107 (2013).
2017] CAMPAIGN FINANCE REFORM WITHOUT LAW 187
as one in which big money inevitably calls the tune. According to such
accounts, the absence of regulation paves the way for plutocracy by enabling
those with economic clout to propel their favored candidates to victory, shape
the agendas of officeholders, and more.3 At the same time, it reduces the
relative influence of everyone else and potentially discourages average citizens
from participating in democratic governance at all.4
Proponents of campaign finance reform certainly have cause to be
disheartened, but the gloomy story they tell about the perils of a deregulated
system is incomplete and perhaps too pessimistic. Its implicit premise is that
the only constraints on money in the electoral process come from law. That
premise is mistaken. In reality, a patchwork of extra-legal factors and forces
affect who gives, how much they give, and what impact their money has on
democratic governance. These extra-legal mechanisms can mitigate at least
some of the ills that reformers attribute to big money.
Consider three initial illustrations of how extra-legal forces shape
money’s role in elections. First, following the Supreme Court’s decision in
Citizens United v. FEC, which lifted restrictions on corporate political
spending,5 some predicted a deluge of corporate money into the system.6
That has not happened. Although there are exceptions, most major business
corporations have declined to open their wallets.7 Many have even adopted
formal policies that limit their electoral spending.8 A host of non-legal
considerations—shareholder pressure, concern about customer backlash,
skepticism about money’s effectiveness, and more—have kept these
corporations on the sidelines.9
Second, candidates for office routinely turn money into a campaign
issue. They decry the huge sums that big spenders inject into the system,
condemn political opponents who rely on the largesse of the wealthy, and
boast about their own small-dollar grassroots campaigns.10 Such appeals are
by no means a surefire formula for political success, but these tactics can alter
the calculus of potential spenders and their intended beneficiaries. Politicians
have to consider the extent to which being cast as the big-money candidate
3. See RICHARD L. HASEN, PLUTOCRATS UNITED: CAMPAIGN MONEY, THE SUPREME COURT,
AND THE DISTORTION OF AMERICAN ELECTIONS 6 (2016); see also infra notes 43–64 and
accompanying text (discussing critiques of money’s role in elections).
4. See, e.g., McConnell v. FEC, 540 U.S. 93, 144 (2003), overruled in part by Citizens United
v. FEC, 558 U.S. 310 (2010) (“Take away Congress’ authority to regulate the appearance of
undue influence and ‘the cynical assumption that large donors call the tune could jeopardize the
willingness of voters to take part in democratic governance.’”(quoting Nixon v. Shrink Mo. Gov’t
PAC, 528 U.S. 377, 390 (2000))).
5. Citizens United, 558 U.S. at 372.
6. See infra note 150 and accompanying text.
7. See infra notes 153–58 and accompanying text.
8. See infra notes 159–70 and accompanying text.
9. See infra notes 153, 172–74 and accompanying text.
10. See infra notes 197–201, 207–12 and accompanying text.

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