Campaign Finance Reform Without Law

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

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.LAW’S 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.