Final Paper on Campaign Finance

Christina Aga

Dr. Sonia Apgar Begert

English 102 – 1:00 p.m. Section

14 June 2015

“A Republic, If You Can Keep It”[1]

Campaign Finance Regulation and the Price of Representation

      Outside of the legal community, few have heard of or paid attention to the U.S. Supreme Court rulings in the cases Citizens United V. Federal Election Commission and McCutcheon V. Federal Election Commission, rendered in 2010 and 2014, respectively. Both of these rulings have a profound effect on campaign finance and mark a dramatic departure from decades of law. These rulings, delivered as a one-two punch to campaign finance regulation, effectively eviscerate legislation meant to thwart corruption and prevent undue influence in the political process. Though modern day campaign finance laws are riddled with loopholes and lack regulatory clout, the majority Supreme Court justices in Citizens United and McCutcheon under Chief Justice Roberts seem to respond by favoring deregulation.  Under the guise of the free speech clause of the First Amendment, these rulings allow corporations and unions to buy the influence of elected officials and spend an unlimited amount of their general treasury funds for the purposes of running independent electioneering communications with the Supreme Court’s stamp of approval (Hasen 582). With unprecedented levels of campaign spending for the 2012 mid-term presidential election, one may wonder if the 2016 presidential race will have more to do with money and less to do with politics (Kalanick 2264).

      These rulings mark a historic departure from previous legislation, one that threatens to undermine the integrity of elected offices. The wording of the Citizens United ruling redefines corruption in a very literal and narrow way. The McCutcheon ruling adds insult to injury by eliminating aggregate campaign contribution limits in a time when individual contributions to politically minded non-profits from wealthy donors escape disclosure requirements (Kalanick 2261). Both rulings uphold mandatory disclosure provisions, yet these regulatory provisions have no teeth and may be easily side-stepped, allowing for the influence of “veiled political actors” (2255). This paper will review each of the two U.S. Supreme Court decisions, examine how the rulings mark a departure from historical campaign finance jurisprudence, evaluate the way campaigns are financed, and argue that these two rulings are more harmful than helpful to campaign finance. The likely implications of the U.S. Supreme Court rulings in Citizens United and McCutcheon regarding campaign contributions and political participation may very well open to doors to undue influence from shadow parties, veiled political actors, and allow for third party donors to avoid disclosure requirements by utilizing politically minded non-profit organizations. In light of the undue influence that money has in the electoral process, a government “of the people, by the people, for the people,”[2] may be a thing of the past; the path to representation within our so-called democracy is paved with “donor class” dollars of the relative few (Haan 272).

HISTORICAL CONTEXT

Campaign finance regulation spans decades of legislation. Many cases reference certain Supreme Court rulings and federal acts and, in an effort to focus on the broader problems of the Citizens United and McCutcheon rulings, this paper will review the highlights of campaign finance reform law as a basis for understanding the implications of both rulings. Many of the following acts and rulings were overturned as a result of Citizens United, a testament to the gravity of the ruling in and of itself. This paper begins with the domino that set off campaign finance deregulation: Citizens United.

Citizens United V. Federal Election Commission. President Obama referenced campaign finance deregulation in his first State of the Union Address to Congress when he said, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests . . . to spend without limit in our elections” (Kalanick 2254). In a 5-4 decision in 2010, the U.S. Supreme Court declared unconstitutional any federal restrictions on independent corporate and union political expenditures in Citizens United V. Federal Election Commission. This was a notable departure from campaign finance reform laws dating all the way back to the Tillman Act of 1907, a piece of legislation that was enacted to “protect the political process from the real or perceived corruption caused by the undue influence that resulted from corporate financial institutions” (Campbell 175). The purpose of this act was two-fold: prevent illegitimate corporate involvement in elections and protect corporate shareholder’s money from misappropriation by disallowing corporations to utilize general treasury funds in the electoral process (176). Corporate donations to political candidates is not new. Indeed, corporate donations to campaigns were becoming commonplace by the 1860’s and didn’t draw major scrutiny until 1905 when, after investigation into the donations made by insurance company New York Life, it was revealed that nearly 73% of Theodore Roosevelt’s reelection campaign was funded by various corporations (177). Outrage over the scandal gave rise to reform and thus the Tillman Act was born, banning corporate campaign contributions.

      Campaign reform hit a milestone in the form of a Supreme Court decision involving amendments to the Federal Election Campaign Act in 1974. In Buckley V. Valeo, the Court made a distinction between campaign contributions and expenditures, noting that expenditures were protected by First Amendment rights and could not be capped, whereas contribution caps didn’t limit political expression as much and could be subject to limits (Gerken 906). By regulating the amount of money donated but not the amount of money spent, the Court sought to balance money in politics. In the 1976 Buckley ruling, the Court contended that a contributor could exercise political speech in the form of a donation – an important distinction that the Citizens Court would later cite with regard to corporate political speech.

      Equating monetary campaign donations to one’s right to political speech is a puzzling concept in itself. The Court didn’t do itself any favors by disregarding the context in which money is spent. Context matters and, as University of Maryland School of Law Professor Deborah Hellman contends, though “Money facilitates and incentivizes the exercise of most rights, including speech,” it “does not show that restrictions on giving and spending money to exercise a right constitute restrictions on that right” (Hellman 981).

Two years after Buckley, the 1978 Court ruling in First National Bank of Boston V. Bellotti was notable for its ruling related to independent corporate expenditures and how such expenditures were a form of speech. In his Loyola of Los Angeles Law Review article, Campbell notes that the Bellotti ruling was not about “whether corporations have First Amendment rights and whether those rights are coextensive with individuals’ rights,” but instead contended that “Massachusetts’s law abridged expression that the First Amendment protected, thus focusing on the speech itself rather than on the speaker” (Campbell 186). Campbell stresses that the speech protection in the Bellotti ruling was “contextually limited” (188). The majority justices in the Citizens Court ignored legal nuance and erroneously cited the Bellotti ruling as one that gave corporations First Amendment rights and, in doing so, equates them to natural persons (Gilpatrick 415). This distinction is one of the Citizens United hallmarks and, in following the line of thinking within the Roberts’ Court to date, it will undoubtedly have bearing on future cases that deal with mandatory disclosure requirements and bans on direct corporate campaign contributions – two of the remaining silver linings of campaign finance reform in the wake of the Citizens ruling.

      Independent expenditures by corporations on behalf of political candidates was banned in the 1990 ruling Austin V. Michigan Chamber of Commerce with a caveat: the ban does not apply to individuals. This ruling underscored the distinction between person and corporation, one that Citizens United overturned. Later referred to as a legal “outlier,” Justice Kennedy, author of the majority opinion in Citizens, noted that Austin was an exception to the general view that corporations, as a collection of voices made up of shareholders, have First Amendment rights and, by that extension (see Buckley), are able to exercise that right to speech and association through monetary means (Hasen 584).

 McCutcheon V. Federal Election Commission. While heavily leaning on the precedence set forth in their Citizens ruling, in 2014 the Supreme Court ruled to deregulate campaign finance restrictions by eliminating aggregate campaign contribution limits in McCutcheon V. Federal Election Commission (Rosen 1537). Though the Court ruled in favor of the appellant in McCutcheon, the majority of the justices (save Justice Thomas), ruled to keep individual campaign contribution limits intact. The issue, they contend, regarding aggregate limits is one of overall speech restrictions. Chief Justice Roberts, author of the legal opinion for the ruling majority, noted, "The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse” (Barnes). The majority ruled that donations to a candidate’s campaign remained capped at $2,600, but the number of candidates an individual wishes to endorse should not be limited. The Court identified aggregate limits as a restriction to political free speech.

      Prior to this ruling, cumulative contributions for candidates running for federal political office was capped but candidates were free to spend as much on their campaigns as they pleased; the campaign contribution-expenditure balancing act established in Buckley was tipped in McCutcheon. Here, the Court argued that aggregate limits imposed on a political donor curtails the right to free speech. Because the Court acknowledged campaign contributions as a form of political speech, restrictions on such donations is a restriction on political speech. In McCutcheon, we at least have an example of an individual wishing to exercise political speech in the form of dollars to candidates (as opposed to corporations). But, as noted in his William & Mary Law Review article “When Are Constitutional Rights Non-Absolute? McCutcheon, Conflicts, and the Sufficiency Question,” Rosen points out that “there are no restrictions on the content of speech” (1568). As I will argue later in this paper, the ability to circumvent donation restrictions through political action committees (PAC) and non-profit organizations allows donors to exceed the individual limits. Dollars do not have a political speech equivalency and the Court’s assumption that a cumulative campaign contribution limit implies a free speech restriction is a reductionist interpretation.

POLITICAL ACTORS

The U.S. is home to a unique two-party system where the Democratic Party and Republican Party have dominated the political scene since the mid-1800’s. Formal political activity in elections, however, falls under the heavy censure of the Federal Election Commission and strict regulations surrounding campaign activities. Indeed, political parties are required to abide by numerous regulations and, as La Raja notes in his Duke Journal of Constitutional Law & Public Policy article, the current regulations actually reinforce party polarization and force candidates to seek funding from partisan donors (La Raja 227). Though these two parties make up the largest portion of the formal political structure, informal political organizations are becoming increasingly more active in their ability to influence the electoral outcome of general elections and influence legislation. These third party groups are independent organizations that are influencing campaigns in remarkable ways. The manner in which independent groups influence is primarily through lobbying and campaign endorsement.

      The restrictions binding corporate political activity was ameliorated with the creation of a political action committee. The PAC option was a means for corporations to engage in politics without the burden of restrictions that corporations were subject to. A corporation may form a separate fund and create a PAC for the purposes of electing political candidates or obtaining political influence. PACs gave corporations a “constitutionally sufficient outlet to speak,” according to former Supreme Court Justice Souter, as quoted in the FEC V. Wisconsin Right to Life ruling in 2008 – an outlet deemed insufficient according to the majority justices of the [different] Court who ruled in Citizens just two years later (Campbell 193).

      While tight restrictions may influence donor recruitment, they are also shaping the way money is funneled into the electoral politics. Donor disclosure requirements were seen as the saving grace of campaign funding; the ‘donate and disclose’ rhetoric was used by formal party actors calling for less Outside of the legal community, few have heard of or paid attention to the U.S. Supreme Court rulings in the cases Citizens United V. Federal Election Commission and McCutcheon V. Federal Election Commission, rendered in 2010 and 2014, respectively. Both of these rulings have a profound effect on campaign finance and mark a dramatic departure from decades of law. These rulings, delivered as a one-two punch to campaign finance regulation, effectively eviscerate legislation meant to thwart corruption and prevent undue influence in the political process. Though modern day campaign finance laws are riddled with loopholes and lack regulatory clout, the majority Supreme Court justices in Citizens United and McCutcheon under Chief Justice Roberts seem to respond by favoring deregulation.  Under the guise of the free speech clause of the First Amendment, these rulings allow corporations and unions to buy the influence of elected officials and spend an unlimited amount of their general treasury funds for the purposes of running independent electioneering communications with the Supreme Court’s stamp of approval (Hasen 582). With unprecedented levels of campaign spending for the 2012 mid-term presidential election, one may wonder if the 2016 presidential race will have more to do with money and less to do with politics (Kalanick 2264).

      These rulings mark a historic departure from previous legislation, one that threatens to undermine the integrity of elected offices. The wording of the Citizens United ruling redefines corruption in a very literal and narrow way. The McCutcheon ruling adds insult to injury by eliminating aggregate campaign contribution limits in a time when individual contributions to politically minded non-profits from wealthy donors escape disclosure requirements (Kalanick 2261). Both rulings uphold mandatory disclosure provisions, yet these regulatory provisions have no teeth and may be easily side-stepped, allowing for the influence of “veiled political actors” (2255). This paper will review each of the two U.S. Supreme Court decisions, examine how the rulings mark a departure from historical campaign finance jurisprudence, evaluate the way campaigns are financed, and argue that these two rulings are more harmful than helpful to campaign finance. The likely implications of the U.S. Supreme Court rulings in Citizens United and McCutcheon regarding campaign contributions and political participation may very well open to doors to undue influence from shadow parties, veiled political actors, and allow for third party donors to avoid disclosure requirements by utilizing politically minded non-profit organizations. In light of the undue influence that money has in the electoral process, a government “of the people, by the people, for the people,”[3] may be a thing of the past; the path to representation within our so-called democracy is paved with “donor class” dollars of the relative few (Haan 272).

HISTORICAL CONTEXT

Campaign finance regulation spans decades of legislation. Many cases reference certain Supreme Court rulings and federal acts and, in an effort to focus on the broader problems of the Citizens United and McCutcheon rulings, this paper will review the highlights of campaign finance reform law as a basis for understanding the implications of both rulings. Many of the following acts and rulings were overturned as a result of Citizens United, a testament to the gravity of the ruling in and of itself. This paper begins with the domino that set off campaign finance deregulation: Citizens United.

Citizens United V. Federal Election Commission. President Obama referenced campaign finance deregulation in his first State of the Union Address to Congress when he said, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests . . . to spend without limit in our elections” (Kalanick 2254). In a 5-4 decision in 2010, the U.S. Supreme Court declared unconstitutional any federal restrictions on independent corporate and union political expenditures in Citizens United V. Federal Election Commission. This was a notable departure from campaign finance reform laws dating all the way back to the Tillman Act of 1907, a piece of legislation that was enacted to “protect the political process from the real or perceived corruption caused by the undue influence that resulted from corporate financial institutions” (Campbell 175). The purpose of this act was two-fold: prevent illegitimate corporate involvement in elections and protect corporate shareholder’s money from misappropriation by disallowing corporations to utilize general treasury funds in the electoral process (176). Corporate donations to political candidates is not new. Indeed, corporate donations to campaigns were becoming commonplace by the 1860’s and didn’t draw major scrutiny until 1905 when, after investigation into the donations made by insurance company New York Life, it was revealed that nearly 73% of Theodore Roosevelt’s reelection campaign was funded by various corporations (177). Outrage over the scandal gave rise to reform and thus the Tillman Act was born, banning corporate campaign contributions.

      Campaign reform hit a milestone in the form of a Supreme Court decision involving amendments to the Federal Election Campaign Act in 1974. In Buckley V. Valeo, the Court made a distinction between campaign contributions and expenditures, noting that expenditures were protected by First Amendment rights and could not be capped, whereas contribution caps didn’t limit political expression as much and could be subject to limits (Gerken 906). By regulating the amount of money donated but not the amount of money spent, the Court sought to balance money in politics. In the 1976 Buckley ruling, the Court contended that a contributor could exercise political speech in the form of a donation – an important distinction that the Citizens Court would later cite with regard to corporate political speech.

      Equating monetary campaign donations to one’s right to political speech is a puzzling concept in itself. The Court didn’t do itself any favors by disregarding the context in which money is spent. Context matters and, as University of Maryland School of Law Professor Deborah Hellman contends, though “Money facilitates and incentivizes the exercise of most rights, including speech,” it “does not show that restrictions on giving and spending money to exercise a right constitute restrictions on that right” (Hellman 981).

Two years after Buckley, the 1978 Court ruling in First National Bank of Boston V. Bellotti was notable for its ruling related to independent corporate expenditures and how such expenditures were a form of speech. In his Loyola of Los Angeles Law Review article, Campbell notes that the Bellotti ruling was not about “whether corporations have First Amendment rights and whether those rights are coextensive with individuals’ rights,” but instead contended that “Massachusetts’s law abridged expression that the First Amendment protected, thus focusing on the speech itself rather than on the speaker” (Campbell 186). Campbell stresses that the speech protection in the Bellotti ruling was “contextually limited” (188). The majority justices in the Citizens Court ignored legal nuance and erroneously cited the Bellotti ruling as one that gave corporations First Amendment rights and, in doing so, equates them to natural persons (Gilpatrick 415). This distinction is one of the Citizens United hallmarks and, in following the line of thinking within the Roberts’ Court to date, it will undoubtedly have bearing on future cases that deal with mandatory disclosure requirements and bans on direct corporate campaign contributions – two of the remaining silver linings of campaign finance reform in the wake of the Citizens ruling.

      Independent expenditures by corporations on behalf of political candidates was banned in the 1990 ruling Austin V. Michigan Chamber of Commerce with a caveat: the ban does not apply to individuals. This ruling underscored the distinction between person and corporation, one that Citizens United overturned. Later referred to as a legal “outlier,” Justice Kennedy, author of the majority opinion in Citizens, noted that Austin was an exception to the general view that corporations, as a collection of voices made up of shareholders, have First Amendment rights and, by that extension (see Buckley), are able to exercise that right to speech and association through monetary means (Hasen 584).

 McCutcheon V. Federal Election Commission. While heavily leaning on the precedence set forth in their Citizens ruling, in 2014 the Supreme Court ruled to deregulate campaign finance restrictions by eliminating aggregate campaign contribution limits in McCutcheon V. Federal Election Commission (Rosen 1537). Though the Court ruled in favor of the appellant in McCutcheon, the majority of the justices (save Justice Thomas), ruled to keep individual campaign contribution limits intact. The issue, they contend, regarding aggregate limits is one of overall speech restrictions. Chief Justice Roberts, author of the legal opinion for the ruling majority, noted, "The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse” (Barnes). The majority ruled that donations to a candidate’s campaign remained capped at $2,600, but the number of candidates an individual wishes to endorse should not be limited. The Court identified aggregate limits as a restriction to political free speech.

      Prior to this ruling, cumulative contributions for candidates running for federal political office was capped but candidates were free to spend as much on their campaigns as they pleased; the campaign contribution-expenditure balancing act established in Buckley was tipped in McCutcheon. Here, the Court argued that aggregate limits imposed on a political donor curtails the right to free speech. Because the Court acknowledged campaign contributions as a form of political speech, restrictions on such donations is a restriction on political speech. In McCutcheon, we at least have an example of an individual wishing to exercise political speech in the form of dollars to candidates (as opposed to corporations). But, as noted in his William & Mary Law Review article “When Are Constitutional Rights Non-Absolute? McCutcheon, Conflicts, and the Sufficiency Question,” Rosen points out that “there are no restrictions on the content of speech” (1568). As I will argue later in this paper, the ability to circumvent donation restrictions through political action committees (PAC) and non-profit organizations allows donors to exceed the individual limits. Dollars do not have a political speech equivalency and the Court’s assumption that a cumulative campaign contribution limit implies a free speech restriction is a reductionist interpretation.

POLITICAL ACTORS

The U.S. is home to a unique two-party system where the Democratic Party and Republican Party have dominated the political scene since the mid-1800’s. Formal political activity in elections, however, falls under the heavy censure of the Federal Election Commission and strict regulations surrounding campaign activities. Indeed, political parties are required to abide by numerous regulations and, as La Raja notes in his Duke Journal of Constitutional Law & Public Policy article, the current regulations actually reinforce party polarization and force candidates to seek funding from partisan donors (La Raja 227). Though these two parties make up the largest portion of the formal political structure, informal political organizations are becoming increasingly more active in their ability to influence the electoral outcome of general elections and influence legislation. These third party groups are independent organizations that are influencing campaigns in remarkable ways. The manner in which independent groups influence is primarily through lobbying and campaign endorsement.

      The restrictions binding corporate political activity was ameliorated with the creation of a political action committee. The PAC option was a means for corporations to engage in politics without the burden of restrictions that corporations were subject to. A corporation may form a separate fund and create a PAC for the purposes of electing political candidates or obtaining political influence. PACs gave corporations a “constitutionally sufficient outlet to speak,” according to former Supreme Court Justice Souter, as quoted in the FEC V. Wisconsin Right to Life ruling in 2008 – an outlet deemed insufficient according to the majority justices of the [different] Court who ruled in Citizens just two years later (Campbell 193).

      While tight restrictions may influence donor recruitment, they are also shaping the way money is funneled into the electoral politics. Donor disclosure requirements were seen as the saving grace of campaign funding; the ‘donate and disclose’ rhetoric was used by formal party actors calling for restrictions and transparency was the trade-off. Disclosure requirements, however, do not apply to 501(c) non-profit organizations. The 501(c) classification is mainly a tax-exemption status given to not-for-profit organizations. Most notable non-profits fall under the 501(c)3 category, while 501(c)4 and 501(c)6 designations are given to politically active groups. The (c)4 designation is given to groups that promote social welfare and civic programs. The (c)6 designation is given to groups like chambers of commerce. A review of the main campaign funding groups reveal that these groups – Crossroads Grassroots Policy Strategy, the child of the American Crossroads Super PAC, for example – are extremely politically active with regard to funding candidates (Gerken 911). Under the guise of promoting social welfare initiatives, many (c)4 organizations operate as extensions of politically minded bodies bound by campaign finance restrictions. Large corporations may give to large PACs, who in turn are able to liaison with [their] (c)4 non-profits and by-pass donor disclosure requirements. This activity allows “wealthy donors to circumvent individual contribution limits” (Kalanick 2267). Though an individual may only donate up to $2,600 to a candidate, the ability to support as many non-profits, candidates, PACs, and parties as one wishes renders that limit useless. McCutcheon’s elimination of aggregate limits was the nail on the coffin for contribution regulations. Gerken speculates that Super PACs and nonprofits have already begun to function like shadow parties with the benefit of nondisclosure and unlimited funding (Gerken 918).

Future rulings. It is likely that the Court will decide future cases with a similar deregulatory approach as the one used in the Citizens and McCutcheon rulings. The Supreme Court took up a case, Doe V. Reed, involving individuals who are arguing that disclosure requirements leave individuals vulnerable to harassment (Carney 2). Brendan Eichs, CEO of Mozilla, stepped down just eight days after appointment when it was disclosed that he donated to legislative action regarding California Proposition 8. His donation was in support of anti-marriage equality for gay couples and, though the donation was over six years ago, Eichs was forced to resign. The issue of disclosure requirements is at the heart of campaign finance regulations. The possibility that the Court may waive donation disclosure requirements for any individual who makes a case for potential future reprisal is alarming.

CONCLUSION

In September 2014, former Virginia Governor Robert McDonnell was convicted of corruption on eleven counts. When his relationship with campaign donor and businessman Jonnie R. Williams, Sr., regarding legislative support for a dietary supplement was examined closely, it was revealed that the then-governor had returned campaign contribution favors for legislative ones (Osnos 5). This corrupt behavior undermines the integrity of elected offices and jeopardizes the public’s trust in its elected officials. In commenting on McDonnell’s conviction, Osnos notes, “The man who had occupied the office once held by Thomas Jefferson had exchanged his power for golf trips, dresses for his wife, and rides in a sports car” (12). The issue with this corruption isn’t the activity itself, deplorable as it may be. The issue with this corruption involves the political system itself. With regard to campaign funding, the laws that are currently in place foster corruption. The Citizens United and McCutcheon rulings have helped create an environment of shadowed political players, one where corruption takes root and thrives. The implications of the U.S. Supreme Court rulings in Citizens United and McCutcheon regarding campaign contributions and political participation will continue to open to doors to undue influence from shadow parties, veiled political actors, and allow for third party donors to avoid disclosure requirements by utilizing politically minded non-profit organizations. Our democracy is functioning more like a plutocracy every day and these rulings have caused the electoral political process more harm than good. The prospects for an honest and transparent system appears grim. Harvard Law Professor and Director of the Center for Ethics political activist Lawrence Lessig succinctly ponders this very issue and wonders, “How could we believe that the thickness of one’s wallet is the metric of citizenship?” (3).

Works Cited

Barnes, Robert. "Supreme Court strikes down limits on federal campaign donations." Washington Post 2 April 2014. Web. 7 May 2015.

Carney, Eliza N. “Rules of the Game: Court Unlikely To Stop With Citizens United.” National Journal. National Journal, 21 January 2010. Web. 21 April 2015.

Campbell, Jason S. "Down The Rabbit Hole With Citizens United: Are Bans On Corporate Direct Campaign Contributions Still Constitutional?" Loyola of Los Angeles Law Review 45.1 (2011): 171-206. Academic Search Premier. Web. 7 May 2015.

Gerken, Heather K. “The Real Problem with Citizens United: Campaign Finance, Dark Money, and Shadow Parties.” Marquette Law Review 97.4 (2014): 903-923. Academic Search Premier. Web. 23 April 2015.

Gilpatrick, Breanne. "Removing Corporate Campaign Finance Restrictions in Citizens United V. Federal Election Commission, 130 S. CT. 876 (2010)." Harvard Journal of Law & Public Policy 34.1 (2011): 405-420. Academic Search Premier. Web. 26 May 2015.

Haan, Sarah C. “The CEO and the Hydraulics of Campaign Finance Deregulation.” Northwestern University Law Review 109.1 (2014): 269-283. Academic Search Premier. Web. 29 April 2015.

Hasen, Richard L. "Citizens United and the Illusion of Coherence." Michigan Law Review 109.4 (2011): 581-623. Academic Search Premier. Web. 22 May 2015.

Hellman, Deborah. “Money Talks But It Isn’t Speech.” Minnesota Law Review 95.3 (2011): 953-1002. Academic Search Premier. Web. 21 April 2015.

Kalanick, Cory G. “Blowing Up The Pipes: The Use Of (C) (4) To Dismantle Campaign Finance Reform.” Minnesota Law Review 95.6 (2011): 2254-2284. Academic Search Premier. Web. 21 April 2015.

La Raja, Raymond J. “Campaign Finance and Partisan Polarization in the United States Congress.” Duke Journal of Constitutional Law & Public Policy 9.1 (2014): 223-258. Academic Search Premier. Web. 21 April 2015.

Osnos, Evan. "Embrace The Irony." New Yorker 90.31 (2014): 52-1. Academic Search Premier. Web. 15 May 2015.

Rosen, Mark D. "When Are Constitutional Rights Non-Absolute? McCutcheon,                   Conflicts, And The Sufficiency Question." William & Mary Law Review 56.4                       (2015): 1535-1611. Academic Search Premier. Web. 15 May 2015.

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[1] Benjamin Franklin quotation. See: Beeman, Richard R. “Perspectives on the Constitution: A Republic, If You Can Keep It.” National Constitution Center. National Constitution Center. Web. 1 Jun 2015.

[2] Abraham Lincoln, Draft of the Gettysburg Address: Nicolay Copy, November 1863; Series 3, General Correspondence, 1837-1897; The Abraham Lincoln Papers at the Library of Congress, Manuscript Division (Washington, D. C.: American Memory Project, [2000-02]).

[3] Abraham Lincoln, Draft of the Gettysburg Address: Nicolay Copy, November 1863; Series 3, General Correspondence, 1837-1897; The Abraham Lincoln Papers at the Library of Congress, Manuscript Division (Washington, D. C.: American Memory Project, [2000-02]).

The Bedford Researcher: Chapter 17 Summary and Discussion

Chapter 17 in The Bedford Researcher reviews the process of revising and editing a paper. The chapter covers how to evaluate the effectiveness of one's argument in a paper through revisions and multiple edits to drafts. Palmquist notes ways to review the purpose, argument, supporting materials, structure, design and overall organization in order to strengthen a writing project. By saving multiple drafts, highlighting main points and evidence, and identifying assumptions, one may begin to see their paper through the eyes of a reader. By scanning the sentence of each  paragraph, it is easy to identify shifts and transitions in the argument. This allows the author to identify holes in their argument or assumptions in their rationale that they can fix. After going over the larger issues of format, design, and transition in argument, focusing on the details of a paper is the next step in revision. By checking accuracy of facts, quotations, spelling, grammar, flow and citations, the author eliminates the possibility of error and strengthens their argument by presenting a clean, clear and tidy paper.

This chapter is timely because it goes well with what we're doing in lecture. The importance of revision and editing cannot be understated; the well-thought out argument of a paper one day shows glaring errors and assumptions when a writer comes back to it a day later. I think time is the most important part of paper revisions because the draft you start with should never be the paper that gets handed in. Getting a draft of paper written is the first important step and, though you may dislike it and want to scrap it, the draft represents a starting point. It is a lot less messy to edit on paper than it is in your head. Overall, this chapter was a good reminder of the importance of drafting and editing.

Rationale

Christina Aga

Dr. Sonia Apgar Begert

English 102

2 June 2015

Rationale

This research project will begin with the introduction of two Supreme Court rulings that went largely unnoticed, save for the legal community. This section will include a description of each ruling and go on to explain the relevance of these rulings as a departure from previous campaign finance rulings and legislation. There will be point by point differences between the rulings and what restrictions have been scaled back. This section will include the free speech rationale used by the Supreme Court Justices to justify their stance in deregulating campaign finance laws. The thesis statement will be included at the end of this introductory section.

The following section will review the history of campaign finance jurisprudence. It will include a review of three important Supreme Court rulings that informed the majority justices of the Citizens United and McCutcheon rulings, as well as one bipartisan act that was partially reversed as a result of Citizens United. It will include the summary analysis of the perspectives provided by the justices who authored each ruling, as well as their analysis of what constitutes illegal campaign finance activity, per the new definition of corruption provided in the Citizens United ruling.

This paper will examine the political actors who are involved in the political process of any federal election. There are formal and non-formal political players and the ways in which campaign finance law can regulate non-formal political activities is extremely limited. This section will identify the formal bipartisan system and how a party handles potential candidates. It will also identify how political action committees operate in relation to candidates. There will be a follow up section on non-formal political that operate a non-profit organizations and shadow donors.

This paper will cite the difference between campaign contributions and campaign expenditures, as well as the laws surrounding who may donate. Direct campaign contributions are still illegal, but the narrowed definition of corruption allows room for undue influence from third parties and makes it difficult to prove corruption. This will be a segway into the implications of the Citizens United and McCutcheon rulings, where political coercion from an employer or laundering contributions through super PACs and non-profits are possible. This section will forecast the effects that these rulings will have on the quality of the pool of candidates and how well candidates can represent their constituency while catering to their big money donors.

The next section will provide two different approaches to campaign finance reform that could be used to create transparency and encourage ethical practice. Clean elections and self-enforcing private contracts are examples of ways to cope with the Citizens United/McCutcheon climate.

The last section will briefly review the inadequacy of the two Supreme Court rulings, the current effects of the decisions and the likely implications in the future. I will conclude by restating my thesis and why the Roberts court failed to safeguard an already fragile campaign finance system, one that needed to be refortified – not bulldozed.

Abstract

Campaign finance restrictions were scaled back when the U.S. Supreme Court ruled in the cases Citizens United V. Federal Election Commission and McCutcheon V. Federal Election Commission. The Citizens United ruling was based on the premise that the federal government cannot constitutionally regulate who – or what – is able to contribute campaign funds without violating the free speech clause of the First Amendment. McCutcheon makes the same argument with regard to aggregate contribution limits. This paper argues that these rulings effectively eviscerate legislation meant to thwart corruption and avoid undue influence in the political process. This paper reviews each of the two U.S. Supreme Court decisions, examines how the rulings alter the way campaigns are financed, and argues that these two rulings are more harmful than helpful to campaign finance. 

Outline

Christina Aga

English 102 – 1:00 p.m. Section

Dr. Sonia Apgar Begert

1 June 2015

Campaign Finance Reform Outline:

I)       Introduction: I give a brief overview of topic, followed by my thesis statement:

a)      The U.S. Supreme Court deregulates campaign finance restrictions for corporations and unions in the McCutcheon V. Federal Election Commission ruling in 2010.

i)       The justices in the court majority overturned pre-existing law in order to legalize electioneering communications from corporations and unions. (Gilpatrick)

ii)     Corporations and unions given protection under constitutional right to free speech clause of First Amendment; corporations and unions tantamount to persons. (Hellman)

iii)   The justices in the court majority redefined ‘corruption’ in the eyes of the law.

(1)   The law no longer identifies access and ingratiation as corrupt activities. A corrupt campaign finance activity must be quid pro quo, per the Citizens United ruling. (Gerken)

iv)    Disclosure requirements remain intact.

b)     The Supreme Court deregulates campaign finance restrictions by eliminating aggregate campaign contribution limits in McCutcheon V. Federal Election Commission in 2014. (Rosen)

i)       The ceiling for aggregate campaign contributions was eliminated; individuals, corporations, NGOs and super PACs may use general treasury funds to contribute to an unlimited number of candidates and parties. (Gerken)

(1)   Disclosure requirements remain intact.

c)      Thesis Statement:  The likely implications of the U.S. Supreme Court rulings in Citizens United V. FEC and McCutcheon V. FEC regarding campaign contribution limits and corporate political participation will open the door to undue influence from shadow parties, veiled political actors, and allow for special interest groups to avoid contribution disclosure requirements by exploiting the advantages of non-profit status.

II)     History:  In order to better understand the implications of both Supreme Court rulings, a brief history of campaign finance jurisprudence is reviewed.     

a)      Citizens United partially or completely overturned previous Supreme Court rulings and federal acts.

i)       Buckley V. Valeo, a landmark case ruled in 1976, laid the foundation for modern day campaign finance regulation, whereby monetary contributions is designated as a form of protected speech. (Haan)

ii)     Austin V. Michigan Chamber of Commerce of 1990 prohibited corporations from using funds to make political expenditures that either support or undermine a political candidate. (Hasen)

iii)   Bipartisan Campaign Reform Act of 2002, an act whose key features included a ban on “soft money” donations, the solicitation of those donations by elected officials, electioneering communications ban by corporations, non-profits, and unions within 60 days of a federal election and restrictions on political party activity with regard to issue ads. (Rosen)

iv)    McConnell V. FEC upheld constitutionality of the BCRA in 2003. (Hellman)

III)   Political actors: the formal and non-formal structure of political players in the United States.

a)      Formal bipartisan system: republicans and democrats.

i)       The formal party nomination process. (Gerken)

ii)     The difference between campaign expenditures vs. contributions. (Gerken)

b)     The role of political action committees.

i)       Examples of conflicts of interest between super PACs and candidates. (Pursely)

c)      The role of not-for-profit organizations in the political sphere.

i)       Use of 301(c) (4) status. (Kalanick)

d)     Shadow parties and non-formal political groups. (Gerken)

IV)   The implications of Citizens United and McCutcheon. (Campbell)

a)      Scenarios of legal political coercion at the workplace. (Harvard Law Review’s “Citizens United at Work”)

b)     A review of political expenditures after Citizens United and McCutcheon was passed. (Krumholz; Vogel)

V)    The tone of the Roberts Court: forecasting the deregulation of mandatory disclosure requirements. (Carney)

a)      Cases of discrimination and harassment for campaign contributions. (Ornstein)

VI)   Coping with current campaign finance legislation: options for candidates. (Johnstone)

a)      Clean elections systems and the Arizona state model. (Spencer)

b)     Self-enforcing private contracts. (Sitaraman)

VII)  Conclusion:  The rulings in McCutcheon and Citizens United were erroneously based on a flawed view of the freedom of speech clause of the First Amendment. These rulings will do more harm than good to campaign finance reform and will allow for only the most independently wealthy or morally flexible candidates to be elected. Lawrence Lessig ponders this very question and wonders, “How could we believe that the thickness of one’s wallet is the metric of citizenship?” (TED)

Literature Review

As a representative democracy, citizens of the United States elect officials for public office who represent their collective interests. Political candidates must campaign competitively and, in order to do so, must raise funds for their campaign. The importance of the less interesting political party nomination step prior to a general election cannot be understated; party nominations and financial endorsement often run parallel to one another and can make or break an aspiring candidate. The typical voter is only aware of the names on a ballot. What process controls the names that make it onto a ballot and how does political funding fit into that process? Campaign finance law shapes the way we elect officials, pass laws, and operate as a country. The wide array of important issues that voters take into account when casting their vote is ultimately undermined by the undue influence from those funding a candidate’s campaign. Are elections being bought? Is corruption a natural by-product of our campaign finance system?

This paper serves to review the importance of funding in political campaigns and analyze campaign finance reform laws that shape the political process. Specifically, this paper will review campaign finance jurisprudence prior to the landmark rulings in Citizens United v. The FEC and McCutcheon v. The FEC and the effects that these rulings have had on the current campaign finance climate. This paper will discuss the implications of these rulings and explore alternatives to the federal campaign finance deregulation seen thus far under Chief Justice Roberts’ court.

Campaign finance law is an astonishingly detailed arena and many laws and court rulings have shaped it over many decades. This paper will review a few of the highlights of that field and discuss some of the Supreme Court rulings that have shaped campaign finance up until the Citizens United and McCutcheon rulings, rendered in 2010 and 2014, respectively. Breanne Gilpatrick’s Harvard Journal of Law and Public Policy article reviews the framework of pre-Citizens United finance law as a whole and reviews the Bipartisan Campaign Reform Act (also known as the McCain-Feingold Act) of 2002 in “Removing Corporate Campaign Finance Restrictions in Citizens United V. Federal Election Commission.” Sarah Hann provides a comprehensive account of landmark campaign finance rulings, including Buckley v. Valeo and McConnell v. FEC, in her Northwestern Law Review article, “The CEO and the Hydraulics of Campaign Finance Deregulation.” Richard Hasen’s “Citizens United and the Illusion of Coherence” article also reviews important rulings, such as the Austin v. Michigan State Chamber of Commerce, used to shape campaign finance laws. These Supreme Court rulings all shaped this field of law and were either partially or completely overturned by Citizens United. Sheila Krumholz’s “Campaign Cash and Corruption” article reviews many of these all important cases prior to discussing how Citizens United dismantled them.

All of the sources used for this paper dealt with the Citizens United ruling and only some discussed the McCutcheon ruling. We have yet to see the effects of the relatively new McCutcheon ruling, rendered in 2014. My main go-to articles for each Supreme Court ruling include Deborah Hellman’s “Money Talks but it isn’t Speech,” Cory Kalanick’s “Blowing Up the Pipes,” and Ganesh Sitaraman’s “Contracting Around Citizens United.” This paper will introduce and discuss in detail both the Citizens United and the McCutcheon rulings. I will mention which pre-existing Supreme Court rulings and legal acts were overturned as a result of each court case.

A sub-section of the Citizens United ruling will review how the majority justices redefined corruption. Corruption in politics is a narrowly defined activity as a result of the Citizens United ruling. This sub-section will reference Harvard Law Review’s article “Citizens United as Work,” as well as Norm Ornstein’s “McCutcheon and the New Banana Republic” and Elizabeth Carney’s “Rules of the Game: Court Unlikely to Stop with Citizens United” for the purposes of reviewing political corruption and the semblance of political corruption. I will utilize Heather Gerken’s Marquette Law Review article “The Real Problem with Citizens United: Campaign Finance, Dark Money, and Shadow Parties” as a source for her interpretation of the new definition of campaign finance corruption, as interpreted by Chief Justice Roberts’ court.

La Raja’s and Campbell’s articles provide argument that Citizens United was a step in the right direction based on the cumbersome restrictions imposed on candidates. They argue that the deregulation is beneficial and mandatory disclosure requirements are a safety net to illegal activity.

The second sub-section of these rulings involve the interpretation of the free speech clause of the First Amendment. Deborah Hellman’s “Money Talks but it isn’t Speech” article deconstructs the legitimacy of the interpretation of that argument used by the majority justices in Citizens United. I will reference information provided in the Harvard Law Review article “First Amendment ­– Freedom of Speech – Aggregate Contribution Limits – McCutcheon V. FEC” in addition to Hellman’s article.

A separate section is devoted to political players. Formal political parties, political action committees (super PACs) and not-for-profit organizations are all participating in the political process via contributions, endorsements and nominations. I will draw from Gerken’s article “The Real Problem with Citizens United: Campaign Finance, Dark Money, and Shadow Parties” as well as Haan’s article “The CEO and the Hydraulics of Campaign Finance Deregulation” in order to illustrate who the main political actors are and how they function.

The saving grace of Citizens United and McCutcheon is that each ruling upheld the need for donor disclosure and transparency. The difficulty with disclosure is two-fold: non-profit organizations are not required to disclose donor information and super PACs are able to channel funds in a way that masks the origin of funds, effectively side-stepping campaign contribution regulations. Garrick Pursely’s "The Campaign Finance Safeguards of Federalism” and Matt Vega’s "The First Amendment Lost in Translation: Preventing Foreign Influence in U.S. Elections after Citizens United V. FEC” discuss this topic at length. Gerken discuss this topic in each of their articles as well.

Articles written by Sitaraman and Spencer each provide coping strategies as a result of Citizens United in the form of clean elections systems contracts and self-enforcing private contracts, both of which are being used to prevent conflicts of interest and campaign funding transparency at the state level. 

The Bedford Researcher: Chapter 13 Summary and Discussion

Chapter 13 in The Bedford Researcher discusses how to organize a paper for a writing project. The chapter reviews common organizational patterns used to format writing projects; chronology, description, definition, cause/effect, compare/contrast and process explanation are some of the types of organizational patterns that Palmquist defines and discusses as options for formatting a paper. Section B of the chapter reviews how to arrange an argument, including labeling, grouping, clustering and mapping. Section C reviews outlining techniques and includes a sample thumbnail outline on page 226 and contrasts the sample sentence topical outlines provided on page 228.

Creating an outline for a paper is one of the most difficult aspects of a writing project. You need to take all the information and research from the sources and group and cluster parts of that information into sections that make sense. The literature review assignment is a helpful reference for one’s outline because it already has groups of the information and has themes that can be used for organizational purposes. I struggle the most with outlines because I’m constantly arranging and rearranging the sections. It’s hard to know if a cause and effect approach will be better than a chronological one for my paper topic. I am working with what seems a lot of themes or categories of information and it seems choppy to me right now. This chapter was helpful because it provides a lot of samples for ways to outline a paper.