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Beyond Citizens United

47 Pages Posted: 11 Dec 2015 Last revised: 23 May 2016

Nicholas Almendares

Seton Hall Law School

Catherine Hafer

New York University (NYU) - Wilf Family Department of Politics

Date Written: August 1, 2015

Abstract

The doctrine announced in Citizens United rendered most efforts to regulate campaign financing unconstitutional. They will not be able to satisfy the case’s demanding First Amendment standard. We argue, however, that the doctrine allows for a novel approach to the concerns inherent in campaign financing that does not directly infringe on political speech because it operates later in the process, after the election. This approach allows us to address a broad range of these issues and to do so with legal tools that are readily available.

We describe two applications of our approach in this Article. First, we argue that courts should use a modified rational basis review when a law implicates the interests of a major campaign contributor. The nature of the inquiry remains the same, the law only needs to serve some public purpose, but the standard is modified to be less deferential because the campaign spending undermines the democratic accountability rationale behind that deference. Second, we argue that some of the key goals of campaign finance regulation can be realized through institutional design of the policymaking process, which has far fewer constitutional limits than campaign finance regulation.

Keywords: First Amendment, Citizens United, Rational Basis Review, Free Speech, Campaign Finance, Institutional Design

Suggested Citation

Almendares, Nicholas and Hafer, Catherine, Beyond Citizens United (August 1, 2015). Fordham Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2701402

Nicholas Almendares (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States

Catherine Hafer

New York University (NYU) - Wilf Family Department of Politics ( email )

715 Broadway
New York, NY 10003
United States

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