Beyond Campaign Finance Reform

Abstract

While the public blames the United States Supreme Court’s decision in Citizens United v. FEC for the outsized political influence of the superwealthy, experts in the field know that the constitutional constraints on our ability to limit the political influence of moneyed elites long-predate Citizens United and pose a formidable barrier to effective campaign finance reform. Nevertheless, the most consistent calls in legal circles are for yet more campaign finance reform. This Article argues that it is time for those serious about curtailing the influence of money in politics to recognize that the struggle for effective campaign finance reforms has run its course. Renewed democratic accountability requires an organized, informed, and representative electorate. The field of election law must, therefore, come to grips with the evidence that the apparent crisis of representation is attributable to profound social and political changes since the 1970s, foremost among them, a transformation of civic associations critically linked to legal choices. While increasing the representativeness of the electorate that turns out to vote must remain a key priority for the field, it is time to attend to the ways that law might encourage civic reorganization — just getting voters out on election days is too little too late. In making this argument, this Article defends two controversial claims: First, the First Amendment tradition poses a formidable barrier to curtailing the influence of moneyed interests regardless of the composition of the Supreme Court. Second, the widespread skepticism in the field that the electorate can be a source of democratic accountability is overstated: The fact that voters, as individuals, are incapable of monitoring elected officials does not foreclose the possibility that voters, as groups, could demand democratic responsiveness. In fact, the historical record reveals that ordinary citizens can exercise influence over the officials elected to represent them when they are well organized and vote.

Keywords: Campaign Finance, Buckley v. Valeo, Citizens United v. FEC, First Amendment, Voter turnout, Elections, Primary Elections, Civic Associations, McCutcheon v. FEC, Election Law, Law of Democracy, U.S. Politics, Wealth Inequality, New Gilded Age