Academic journal article Harvard Law Review

Restoring Electoral Equilibrium in the Wake of Constitutionalized Campaign Finance

Academic journal article Harvard Law Review

Restoring Electoral Equilibrium in the Wake of Constitutionalized Campaign Finance

Article excerpt

Campaign finance laws have been frequently in the minds of legal scholars, politicians, and American citizens since the release of the Citizens United v. FEC (1) decision in January 2010. Some treated Citizens United as an outlier, shocking in its creation of a brave new world of corporate and union campaign expenditures. (2) But in reality, the Roberts Court has been systematically deciding campaign finance cases involving the independent expenditures of groups and individuals over the past five years, (3) holding again and again that the First Amendment is unconstitutionally burdened when regulations prevent independent expenditures (4) from being made during elections. (5)

The total effect of these decisions is an overall increase in speech. But this increase benefits only groups advantaged by the liberalization of laws governing independent expenditures--namely individuals, corporations, and groups not governed by Federal Election Commission (FEC) contribution limits (6)--leaving traditional political speakers like candidates and parties behind. Because these independent groups and individuals are now free to spend unlimited money from sources other than individuals and political committees contributing in FEC-limited amounts--such as personal finances, (7) corporate profits or union dues, (8) or large private donations (9)--they account for most of the significant uptick in the campaign spending curve. (10) But the traditional outlets for political speech --candidates, parties, and political action committees (PACs)--are still limited in their operations by the realities of having to aggregate money according to FEC regulations by gathering lots of relatively small individual contributions. (11)

Opening the floodgates of money for some entities but not others has changed the relative power of the FEC-regulated entities and independent speakers. The campaign finance world is essentially an artificial, hyperregulated market created by the government, and in any market, spending power is power. The fundamental theory of this market is that only government-approved money can enter the system, so the statutory contribution caps created an electoral equilibrium (12) of sorts--balancing power based on the size of the contributions each entity could accept. But in the post-Citizens United world, half the market of political spending is still extensively regulated while the other half is extensively free. And because the system of regulation is premised on a closed system, there can be no equilibrium after Citizens United. This Note argues that the efficacy of a hyper-regulated market of campaign finance depends on the exclusion of nonsystemic money and that recapturing a coherent electoral equilibrium is, as a policy matter, critical to the continued functionality of the campaign finance market.

The most obvious solution to this problem would be for Congress to legislate the system back into balance, to ensure the same types of regulations govern all speakers during elections. Since the Federal Election Campaign Act of 1971 (13) (FECA), Congress has taken this approach to regulating the campaign finance world. The most recent congressional overhaul of the campaign finance system--known informally as "McCain-Feingold" and officially as the Bipartisan Campaign Reform Act of 2002 (14) (BCRA)--reflected this desire for extensive regulation. But now that the Roberts Court has completed the "constitutionalization" (15) of the right to spend infinitely on independent campaign expenditures from nearly any source of money, (16) any attempt to rebalance the system to the benefit of candidates or parties may not do so by restricting independent expenditures of third parties.

This Note attempts to capture and describe the fundamental tension that now exists in the U.S. campaign finance system and to identify and consider the issues this tension presents for electoral politics in general. Instead of building the case for or against the increased constitutionalization of speech rights vis-a-vis elections and campaign finance, this Note argues that this increased, but incomplete, constitutionalization of campaign finance law has created a dystopic system that lends itself to no quick and simple remedy. …

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