Tag: Election Law

The Geography of Campaign Finance Law – Article by David Fontana

From Volume 90, Number 6 (September 2017)
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Constitutional law is committed to a principle of geographic self-government: congressional districts and states are separately located and entitled to select different officials to send to Congress. James Madison explained in The Federalist Papers that checks and balances would only work if different places and their different politics were empowered to compete with and constrain one another. While constitutional law makes place significant for congressional elections, campaign finance law does not. Those with the resources to contribute often and in large amounts to congressional campaigns primarily reside in a few neighborhoods in a few metropolitan areas. Campaign finance law imposes no limitations and minimal disclosure on contributions from these places to other districts and states—places quite different than the ones where contributors reside. The result is that a few metropolitan areas dominate contributions to congressional campaigns.

Campaign finance law thus allows Congress to be controlled by very few places, dramatically undermining geographic self-government. While scholars have devoted substantial attention to other problematic features of money in politics, the geography of campaign finance law is a different constitutional problem justifying different constitutional solutions. This Article considers two types of legal responses: those that focus special attention on where campaign contributions are beginning and those that focus special attention on where campaign contributions are ending. While both types of solutions have their own respective constitutional benefits and negatives, they both share a common insight. Only by making campaign finance law conscious of place can we begin to address the problems of the geography of campaign finance law.

 

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We Are Not Interested: How Dominant Political Parties Use Campaign Finance Law to Lock Interest Groups and Third Parties Out of the System – Note by Rowley Rice

From Volume 89, Number 4 (May 2016)
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The scholarship on “politics as markets” reveals that dominant political parties use “lockups” to control the political system. So stronger, process-oriented judicial review is necessary to disrupt existing lockups. This Note comparatively applies this scholarship to campaign finance laws in the United States and United Kingdom. It shows that these countries’ campaign finance regimes function as lockups that permit the major parties to dominate their countries’ politics. Lockups allow these parties to control elections and the national discourse. These campaign finance lockups raise significant normative concerns because they restrict alternative voices’ political participation. This challenges democracies’ need for varied, pluralist free speech. In both nations, judicial review has disrupted the system and weakened these lockups, but this disruption has been more extensive in the United States. Finally, this disruption may bring its own costs by giving wealthy elites further, disproportionate speechmaking power.

 

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The Partisan Foundations of Judicial Campaign Finance – Article by Michael S. Kang & Joanna M. Shepherd

From Volume 86, Number 6 (September 2013)
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Money buys things. This is the worry about money in judicial elections. As campaign spending in judicial elections has rapidly ramped up, there is increasing concern that judicial elections now have become “floating auctions” in which contributors purchase favorable judicial treatment in exchange for campaign financing. For sitting judges, the prospective need for money to finance their re-election looms over judicial decisionmaking and tempts them to decide cases in ways that attract, or at worst would not alienate, prospective contributors. Even the Supreme Court, which has hardly demonstrated great concern about campaign finance, recognized for the first time the potential for actual bias from big-money campaign spending in state judicial elections in Caperton v. A.T. Massey Coal Co.

What is regularly missed in this story of modern judicial campaign finance, however, is that the Republican and Democratic Parties play an indispensable role in the influence of money on judicial decisionmaking. The intuitive understanding of judicial campaign finance as a direct exchange of money for influence between individual contributors and candidates is too simplistic to capture the larger realities of modern judicial elections. Of course, there is a very real relationship between contributions to judges and judicial decisions by those judges favorable to their contributors that we ourselves have helped document. However, in the modern world of judicial campaign finance, the Republican and Democratic Parties broker the powerful relationships between contributors and candidates, particularly in partisan elections where their involvement is greatest.

 

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Rethinking Donor Disclosure After the Proposition 8 Campaign – Note by David Lourie

From Volume 83, Number 1 (November 2009)
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Proposition 8, the California ballot measure that amended the state constitution to deny marriage to same-sex couples, passed by a small margin in November 2008. The campaign was contentious, well funded by both sides, and the subject of much media attention. After Proposition 8 passed, however, the debate about same-sex marriage in California was far from over. Shortly after the election, Proposition 8 opponents organized protests against certain Proposition 8 supporters and their employers throughout California and in other states. For example, opponents protested at the Church of Latter-Day Saints in Los Angeles because the church and its members raised a significant amount of money to support Proposition 8. Opponents also organized boycotts of businesses whose owners or employees donated to support Proposition 8. Several of these protests had negative repercussions for donors. For example, following threats of boycotts of his musical works and his employer, Scott Eckern, the longtime artistic director of the California Musical Theater, resigned from his position after it was revealed that he donated $1000 to Proposition 8. Marc Shaiman, the composer of the music for Hairspray, told Eckern that he would not let his work be performed in the theater due to Eckern’s support for Proposition 8. U.S. law requires a secret ballot for both candidate and issue elections, so how did opponents of Proposition 8 identify the donors to Proposition 8? The answer lies in disclosure laws. In California, as in most states, campaigns must publicly disclose certain information about individuals who donate to a ballot measure or candidate. California’s Political Reform Act of 1974, as amended, provides that all campaign donations of $100 or more must be published on the Secretary of State’s website, allowing the public to easily search for the names of campaign donors online. Further, not only must the donor’s name and the amount of the contribution be disclosed, but the donor’s street address, occupation, and employer’s name—or, if self-employed, the name of the donor’s business—must also be disclosed. On the federal level, campaign contributions to federal candidates are also now easily accessible to the public online. Federal law requires disclosure of individuals who contribute $200 or more to a candidate. This information can be viewed online through the Federal Election Commission’s (“FEC’s”) website, as well as on other websites. Not only has technology increased the availability of donor information online, but political entrepreneurs have also taken the FEC’s campaign finance data and made it even more accessible online, allowing users to search the data by multiple categories. For example, the Huffington Post, a popular blog, runs a search engine called “Fundrace 2008,” which allows a user to search for donors to 2008 presidential candidates by a donor’s first or last name, address, city, or employer. The website boasts about the easy access to the political leanings of nearly anyone a user knows of: “Want to know if a celebrity is playing both sides of the fence? Whether that new guy you’re seeing is actually a Republican or just dresses like one?”

 

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The Dual Path Initiative Framework – Article by Elizabeth Garrett & Mathew D. McCubbins

From Volume 80, Number 2 (January 2007)
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The widespread use of the initiative process and the perception that it has lead to considerable negative consequences have prompted calls for reform. In this Article, we focus on two complaints about initiatives that can be addressed through a new legal framework. First, some have argued that the policy choices made through direct democracy are often not socially optimal, and the process through which initiatives are passed may make welfare-reducing decisions inevitable. Reform proposals often aim to correct this complaint by increasing the hurdles to ballot qualification. This sort of reform is counterproductive in several ways. By increasing the “price” of ballot access, such responses are likely to exacerbate the current disproportionate influence of money. Moreover, there is no reason to believe that a more difficult qualification process will impede more socially suboptimal policies than policies that are welfare-enhancing and yet stymied in the legislature by powerful interest groups. We argue that a better focus of initiative reform would provide other checks and balances throughout the process, not primarily during the qualification period. Second, initiatives, once enacted, often fail to be implemented by government officials. Few reform proposals are aimed at this post-enactment problem; they do not take account of the likelihood that government officials who resisted passing the proposal are likely to continue to undermine it during the implementation phase. In contrast, our framework includes a new institution to monitor compliance with popularly generated initiatives and ensure greater enforcement. We describe these two concerns in greater detail in Part II.

 

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Waiting for Watergate: The Long Road to FEC Reform – Note by Lauren Eber

From Volume 79, Number 5 (July 2006)
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In a February 2005 press conference about his proposed 527 Reform Act of 2005, Senator John McCain (R-AZ) vehemently expressed his views about the Federal Election Commission: “the Federal Election Commission has failed to do their duty….This is a corrupt organization. And I don’t use the word lightly. We need to reform the Federal Election Commission.” This was not McCain’s first public contribution to the litany of derogatory rhetoric about the FEC, which has been called the “Failure to Enforce Commission,” a “toothless tiger,” “FEC-less,” a “muzzled watchdog,” and “The Little Agency That Can’t.” McCain has previously called the FEC a “rogue agency” and “weak and failing.” But in a comment that is more than just name-calling, McCain gets to the heart of what is really wrong with the FEC: it is “structured by Congress to be slow and ineffective.”

Legislators have a vested interest in keeping the FEC weak and inefficient because they are among the potential targets of enforcement actions. Because reelection is the “dominant goal” of most legislators, they are unlikely to enact legislation contrary to their self-interest unless they perceive that failure to do so would cost them votes. Consequently, a substantial increase in the FEC’s power is unlikely until legislators feel pressure from the public to strengthen campaign finance enforcement. But FEC reform is currently too low on the public’s political agenda to capture politicians’ attention. Not even a major political scandal, like lobbyist Jack Abramoff’s admission that he bribed Republican members of Congress, was enough to alter the public’s apathy toward campaign finance. In fact, a January 2006 Pew Research Center survey found that “[t]he public has been hardly stirred” by the scandal and that “Jack Abramoff’s admission that he bribed members of Congress has sparked little interest.”

 

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Judging the Three-Judge Panel: An Evaluation of California’s Proposed Redistricting Commission – Note by Nicholas D. Mosich

From Volume 79, Number 1 (November 2005)
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A movement to reform the method of drawing state legislative and U.S. congressional districts has been slowly spreading across the country for decades. The movement’s goal: to revoke state legislatures’ control over redistricting and cede it to independent redistricting commissions. Spurred by progressively less competitive elections for the U.S. House of Representatives and state legislatures, and by the increasing success of partisan and bipartisan gerrymanders in manipulating the outcomes of those elections, calls for change have recently attracted national attention. Following the 2004 elections – the results of which revealed some of the least competitive races for state legislative and congressional seats in American history and exposed two of the most effective and egregious political gerrymanders ever accomplished – these calls rose to a fever pitch.

In February 2005, California Governor Arnold Schwarzenegger responded to this outcry. He backed an initiative that, if passed, would have created an independent redistricting commission in California and he joined forces with nonpartisan organization Common Cause to advocate for the establishment of such commissions across the country. Commentators foresaw a “Redistricting Revolution.” The efforts of Governor Schwarzenegger and Common Cause met early success as campaigns to reform redistricting were launched in twelve states. Additionally, initiatives to establish redistricting commissions in California and Ohio qualified for the ballots during those states’ next elections. The calls for reform were echoed in Washington, D.C., as two bills were introduced in the House of Representatives that would require every state to use an independent redistricting commission for redrawing congressional districts.

 

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Voting with Your Hands: Direct Democracy in Annexation – Article by Clayton P. Gillette

From Volume 78, Number 4 (May 2005)
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Municipal annexation receives a mixed reaction in the analysis of metropolitan organization. Some commentators, such as David Rusk or Laurie Reynolds, view annexation as the savior of cities that could not otherwise expand in ways necessary for economic success. For these advocates of liberal municipal expansion, annexation promises to reduce ethnic and racial segregation, residential density, inefficiencies allegedly related to metropolitan fragmentation, and per capita costs of public services. They similarly claim that annexation frustrates efforts by nonresidents to take advantage of municipal resources without paying a fair share for their upkeep and enables central cities to increase local tax revenues and control land use at the urban fringe.

Annexations that occur under these circumstances are likely to be described as necessary or appropriate for orderly municipal or regional development by those who favor them. Annexing municipalities and their constituents may portray the resources that they seek through annexation as being properly available to all residents of the region including both the annexing and annexed communities. They may also portray those who oppose annexation as motivated primarily by a desire to monopolize a resource to which they are not entitled or to avoid contributions to the metropolitan area commensurate with the benefits conferred by the central city.

 

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