Academic journal article Journal of Corporation Law

A Sign of Change or More of the Same? Wagner V. FEC and Its Implications on the Changing Field of Corporate Campaign Contributions as Applied to Federal Contractors

Academic journal article Journal of Corporation Law

A Sign of Change or More of the Same? Wagner V. FEC and Its Implications on the Changing Field of Corporate Campaign Contributions as Applied to Federal Contractors

Article excerpt

I. INTRODUCTION II. BACKGROUND    A. The Regulation of Campaign Finance      1. Early Federal Campaign Finance Regulation      2. The Federal Election Campaign Act        a. Early FECA Regulations        b. Amendments and Challenges to FECA        c. FECA Today    B. Parallel State Development of Campaign Finance Regulation    C. The Political Question Doctrine and Questions of Judicial     Review of Campaign Finance    D. Austin v. Michigan Chamber of Commerce and Supporting FECA    E. Citizens United and the Opening of the Floodgates    F. Where is the End? McCutcheon and the Continued Deregulation of     Political Corporate Speech    G. The FEC Ruling in the Chevron MUR: More of the Same?    H. Wagner v. FEC      1. FECA's Prohibition and the Parties' Challenge      2. Procedural Posture: The Lower Courts      3. Return to the Circuit        a. The Closely Drawn Standard        b. Government Interests        c. The Government's Legitimate Interests        d. Dispatching the Claims of the Plaintiffs        e. Appellate Court Holding      4. The Denial of Writ of Certiorari    I. The 2016 Election and Justice Gorsuch to the Supreme Court III. ANALYSIS    A. The Possible Paths: The Implications of Wagner v. FEC      1. The Narrow View of the Court of Appeals      2. The Expansive View of Wagner: What Could Be        a. Dissonance Between Part IV.C and Part V of Wagner and          Its Implications on PACs        b. PACs as Part and Parcel of the Corporation        c. PACs as Separate Entities IV. RECOMMENDATION    A. The Status Quo: Following the Logic of Kennedy      1. Forming a Political Action Committee      2. Exercising Free Speech--the Option of Super PACs    B. Navigating a Changing Field: The Implications of the Trump     Presidency      1. The Shift Right and the Deregulation of Campaign Finance        a. Overturning Wagner and FECA's Prohibition      2. A Different Approach: The Anti-Establishment Candidate        a. The Effect of Anti-Corruption--The Potential for         Restriction    C. Which Path is Best?      1. Navigating the Narrow Interpretation of the Status Quo      2. Navigating the Expansive Interpretation of the Status Quo      3. Navigating a Conservative Judicial Environment Under the       Narrow Interpretation of Wagner      4. The Dissonance of an Expansive Reading of FEC v. Wagner       and a Conservative Shift in the Court    D. The Best Path V. CONCLUSION 

I. INTRODUCTION

Today, being able to effectively advocate to elected officials has become an issue of great importance to not only those individuals and corporations looking to secure favorable legislation and opportunities to bid on projects, but to those individuals and entities seeking to influence the ideology and other more specific positions of federal elected officials as well as those seeking federal office. In the way of this advocacy is a complex and often unclear thicket of federal regulatory and legal provisions that govern campaign finance. This thicket is especially dense for federal contractors, who face a complete ban on contributions. This Note aims to suggest the best course of action for an individual or corporate entity that seeks to influence federal elections through direct contributions.

Part II discusses the background of The Federal Election Campaign Act (FECA) and the corresponding legislative, regulatory, and judicial developments that have shaped the current campaign finance environment, including the most recent judicial decision, Wagner v. Federal Election Commission. Part III analyzes subsequent administrative and scholarly opinions regarding the interpretation of Wagner decision. Part IV makes recommendations of the avenues available to individual and corporate contractors, and more generally the course of action for corporations and individuals interested in influencing federal elections.

II. Background

A. The Regulation of Campaign Finance

1. Early Federal Campaign Finance Regulation

The call for regulation of corporate involvement in federal campaigns began, at the urging of Theodore Roosevelt, in the early 1900s. …

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