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.