Saving Democracy: A Blueprint for Reform in the Post-Citizens United Era

By Benson, Jocelyn | Fordham Urban Law Journal, December 2012 | Go to article overview

Saving Democracy: A Blueprint for Reform in the Post-Citizens United Era


Benson, Jocelyn, Fordham Urban Law Journal


ABSTRACT

Since the founding of our democracy, attempts to curb the influence of money in the political process consistently fall short of their goal. In fact, a growing number of cynics see campaign finance reform--or any effort to reduce the impact of money in the political process--as inherently doomed to fail. With the recent dearth of meaningful campaign finance reform on the federal level in the post-Citizens United era, reform advocates must look to the states to explore and enact changes to the law that will promote a healthier role for money in politics. This Article reviews efforts to reform government in response to a growing body of U.S. Supreme Court jurisprudence eliminating existing campaign finance regulations. It analyzes four of the reforms gaining the most attention through the lens of how effectively each one advances one of the four primary interests that must drive the regulation of money in politics. Those interests, described in Part I of the Article, are (1) The Equality Interest; (2) The Information Interest; (3) The Participation Interest; and (4) The Anti-Corruption Interest. The Article ultimately asserts that each proposal, if championed alone, falls short of achieving reformers' overall goal of a democracy that serves these four interests. It further contends that effective reform can only succeed at furthering the above interests if it is a comprehensive combination of all of the proposals. The Article concludes with a proposed road map towards advancing all reforms.

Introduction
 I. The Goal
      A. The Equality Interest: A Government of, by, and for
         the People
      B. The Information Interest: Preserving a Well-Informed
         Electorate
      C. The Participation Interest: Voters Need to Believe in
         the Process to be Engaged
      D. The Anti-Corruption Interest: Democracy Is Not for
         Sale

 II. The Reforms
      A. Reform 1: Disclosure and the Information Interest
      B. Reform 2: Citizen-Financed Elections and the
         Equality Interest
      C. Reform 3: Shareholder Protections and the
         Anticorruption Interest
      D. Reform 4: Move to Amend and the Participation
         Interest

 III. Roadmap to Change
      A. Recommendation 1: A Comprehensive Plan
      B. Recommendation 2: States as the Laboratories for
         Reform
      C. Recommendation 3: Broad-Based Citizen-Led
         Coalition of Support

Conclusion

Introduction

Since the founding of our democracy, attempts to curb the influence of money in the political process consistently fall short of their goal. In fact, a growing number of cynics see campaign finance reform--or any effort to reduce the impact of money in the political process--as inherently doomed to fail. The bulk of their argument is based upon the view that money is like water, and it will always find a way to influence the political ecosystem no matter how many barriers or regulations seek to mitigate that influence. (1)

But that view itself is not sufficient to reject wholesale ongoing attempts to improve democracy through reforms that will mitigate or even redirect the flow of money into a useful role in the political process. (2) Such attempts are particularly critical at this stage of our electoral system. The first century of our democracy was marked by wars over its strength and unification. The second focused on expanding the electorate through extending the franchise to additional groups of citizens. But the third, beginning roughly in the 1970s, has thus far been dominated by a discussion of how to regulate the role of money and financial interests in the political arena. That discussion has only increased in intensity in the years following the U.S. Supreme Court's 2010 decision in Citizens United v. FEC, (3) which widened the floodgates for money from corporate treasuries to flow into our democracy.

This Article examines the myriad of state and federal efforts in the years since Citizens United that attempt to blunt the force of the decision or in other ways minimize the influence of money in American elections. …

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