Danger Signs in State and Local Campaign Finance

Abstract

Under U.S. campaign finance jurisprudence, a government may constitutionally subject electoral candidates to contribution limits—i.e., limits on the dollar amount one may directly contribute to a candidate’s campaign. Such limits play a crucial role in our democratic systems, as they help curb corruption, reduce legislative polarization, and equalize the political influence of the power elite and marginalized communities.

Since 2005, the Roberts Court has systematically deregulated federal campaign finance laws, including federal contribution limits. Such cases have received considerable attention from scholars and the media. What has received far less attention, however, is the onslaught of legal challenges brought against state and local contribution limits (“SLCLs”), many of which have been successful.

Within each of these challenges, a critical problem emerges: There is no clear standard of judicial scrutiny for SLCLs. The Court attempted to create one in a 2006 opinion penned by Justice Breyer, dubbed the “danger signs” test. This test, nevertheless, is ripe with ambiguities and has confused judges and scholars since. And when the Court had a chance to provide clarification in 2019, it instead muddled the test further.

This Article marks the first major attempt in campaign-finance literature to resolve this issue. It deconstructs the danger signs test and rebuilds it to reflect both developments in the caselaw and the modern state of campaign finance. In particular, this Article centers the danger signs test around one key concept: that contribution limits under the Roberts Court have been reduced to price ceilings on quid pro quo exchanges between donors and candidates. In doing this, the Article seeks to develop a robust standard that will protect SLCLs from arbitrary invalidation and ultimately preserve the democratic interests of state and local constituencies.

Keywords: Election Law, Campaign Finance, Campaigns, State Law, Local Law, Contribution Limits, Roberts Court