Campaign Finance Reform Without Law

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

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 Pozen, Miriam Seifter, 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. D OCTRINAL L IMITATIONS ........................................................ 199 1. Expenditure Limits ....................................................... 200 2. Contribution Limits ...................................................... 200 3. Public Financing ............................................................ 202 4. Disclosure Requirements .............................................. 204 B. P OLITICAL L IMITATIONS ......................................................... 205 C. P RACTICAL L IMITATIONS ......................................................... 208 IV. LOOKING BEYOND THE LAW ......................................................... 209 A. P RIVATE O RDERING IN A CTION ................................................ 210 1. Limiting Big Money ...................................................... 210 2. Diluting Big Money’s Influence ................................... 217 3. Minimizing Big-Money Abuses ..................................... 222 B. O PPORTUNITIES AND C HALLENGES FOR P RIVATE R EFORM ......... 225 V. TOWARD A PRIVATE REFORM AGENDA .......................................... 229 A. S HIFTING S OCIAL N ORMS ......................................................... 229 B. F IGHTING B IG M ONEY WITH B IG M ONEY .................................. 233 VI. BROADER IMPLICATIONS ............................................................... 239 A. L AW ’ S R OLE IN C AMPAIGN F INANCE ......................................... 239 B. T HE H YDRAULICS OF P RIVATE C AMPAIGN F INANCE R EFORM ..... 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 SETON 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. 188 IOWA LAW REVIEW [Vol. 103:185 might offset the benefits that the money will provide. Potential financiers need to make a similar calculation about whether popular disapproval of big spenders will dilute the value of their money, and perhaps whether the risk of being personally denounced is worth the cost. Again, these considerations beyond the law are vital to understanding our campaign finance system in operation. Third, technology affects money’s role in elections in myriad ways. Compared to a generation ago, it is significantly easier and cheaper today for candidates and organizations to solicit and collect money from small donors. 11 Technology also provides new outlets for spending. Election advertising on websites, search engines, and social media networks has become the norm, and these platforms make it increasingly possible to tailor messages to discrete slivers of the electorate. 12 At the same time, technology provides new opportunities to reach the public without significant expense—a candidate with millions of social media followers becomes less dependent on paid forms of communication. 13 Campaign finance scholarship has given short shrift to the system’s extra-legal aspects. Instead, the literature focuses principally on legal doctrine and regulatory policy. In recent years, commentators have thoroughly critiqued the Roberts Court’s campaign finance jurisprudence and advanced alternative...