Dark Money Rises: Federal and State Attempts to Rein in Undisclosed Campaign-Related Spending

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Introduction  I. Background: Free Speech Rights and Compelled Disclosure       A. Free Speech Rights          1. The Origins of and Justifications for Free Speech             Rights          2. Common Challenges to Laws Regulating Election-Related             Speech       B. Compelling Disclosure          1. The Interests in Compelling Disclosure          2. The Interests in Avoiding Disclosure       C. The Evolution of the Federal Election Campaign Act:          From Buckley to Citizens United.   II. The Current State of the Federal Disclosure Requirements       A. The Current Federal Disclosure Requirements       B. The Inadequacies of the Federal Requirements          1. Various Ways of Avoiding Disclosure Under the          FECA          2. The Effect of Splits on Disclosure             a. Defining Express Advocacy             b. Defining an Electioneering Communication             c. Determining When an Organization Qualifies                as a PAC             d. The Ensuing Effects on Disclosure   III. State Attempts to Go Beyond the Federal Requirements       A. Determining What the Supreme Court Said          1. The Major Purpose Test          2. Express Advocacy and Its Functional Equivalent       B. Determining What Exactly Is Exacting Scrutiny          1. Expanding the Definition of Electioneering             Communications          2. PAC-Style Disclosure Requirements   IV. Where Do We Go From Here: Plugging Holes and      Increasing Disclosure       A. Congress's Role       B. The FEC's Role       C. The Courts' Role          1. The Heightened Specificity Standard Should Not             Apply to Disclosure Laws          2. Courts Should Be Deferential to State Attempts to             Discover the Extent of Outside Influence in their             Local Elections  Conclusion 

Introduction

Perhaps the most infamous of attack advertisements, titled "Peace, Little Girl," depicted a little girl in a field plucking petals from a daisy as she counted up from one to nine. (1) At the end of her count, a man's voice began counting down from ten. (2) Upon reaching zero, an atomic bomb exploded. (3) As the mushroom cloud appeared on the television screen, the voice of then-President Johnson stated: "These are the stakes--to make a world in which all of God's children can live, or go into the dark. We must either love each other, or we must die." (4) The ad was intended to attack statements that Barry Goldwater, the Republican presidential candidate, had made regarding nuclear warfare. (5) Although the ad aired only once, it is credited with ushering in a new era of American politics. (6) However, attack ads are nothing new--neither are anonymous ones.

In 1800, President John Adams faced reelection against Thomas Jefferson. (7) The Alien and Sedition Act prevented anyone from openly criticizing the President, so Jefferson sought other ways to get his message out. (8) Jefferson anonymously distributed campaign propaganda (9) and financially supported James Callender while encouraging him to publish a series of essays in the Richmond Examiner that attacked Adams, referring to him as a "hideous hermaphroditical character which has neither the force or firmness of a man, nor the gentleness and sensibility of a woman." (10) Adams fought back, calling Jefferson "a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father." (11)

Today, negative campaign advertisements dominate the airwaves during election cycles. (12) Just as Americans have come to expect to see more holiday-themed advertisements in November and December, (13) they too have come to expect a flood of negative campaign ads in the months preceding elections. (14) In 2012, Americans witnessed the most expensive election campaign in history, topping off at approximately seven billion dollars. (15) Modern attack ads, produced by strategy teams including behavioral scientists, (16) are noticeably less overt, although no less persuasive, than they were in the nineteenth century. …