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.