Timing is Everything: A New Model for Countering Corruption Without Silencing Speech in Elections

Abstract

After the Supreme Court's sweeping decision in Citizens United v. FEC, scholars and reformers are scrambling to find new ways to limit the influence of money in politics. In striking down prohibitions on corporations' use of general treasury funds to make independent expenditures, the Citizens United Court eliminated one of the major avenues used to limit the potentially corrupting influence of money in campaigns. One area of the law left open by the Citizens United decision is that of temporal restrictions on campaign contributions. This Article examines limits on when during campaigns money may be given and received, critiques the courts' approach to this issue, and proposes a new solution to efforts to limit the influence of money in politics.

Temporal limits on campaign contributions prohibit contributions during certain time periods. Temporal limits may take the form of pre-election, legislative-session, off-year, or post-election bans on contributions. These restrictions are ostensibly enacted to prevent the flow of money to candidates during time periods when contributions pose a unique threat of actual or apparent corruption. Some courts have viewed these bans as contribution limits, limiting the time when contributions may be made rather than the size of contributions. Other courts, however, have categorized these restrictions as expenditure limits, preventing a candidate from spending money by prohibiting that candidate from raising money during a certain time period. This Article examines the courts' varying approaches to temporal restrictions on campaign contributions and analyzes the benefits and burdens that different types of temporal restrictions place on the three players in any campaign finance question: the contributor, the candidate, and the government.

Because courts have found that the most effective temporal restrictions stand on constitutionally infirm grounds, this Article presents a different solution to the problem of restrictions on when contributions can be made and received. While the legislative model proposed by this Article is novel, it draws on existing systems, found to be constitutional, which seek to limit the influence of money in politics for support.