Campaign finance disclosure and the legislative process

Harvard Journal on Legislation

Volumn 47, Issue 1, 2010, Pages 75-114

  Noveck, Scott M ^a  

^a Supreme Court ^*

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EID: 77949642201     PISSN: 0017808X     EISSN: None     Source Type: Journal    
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References (248)

1. See infra Part I.A.
2. Elizabeth Garrett, Voting with Cues, 37 (2003)
3. U. RICH. L. REV. 1011, 1011 ("[T]he campaign finance reform eliciting nearly uniform support has been disclosure of the source and amount of campaign contributions and expenditures.")
4. BRUCE ACKERMAN & IAN AYRES, VOTING WITH DOLLARS: A NEW PARADIGM FOR CAMPAIGN FINANCE (2002).
5. For a review of recent trends toward increased disclosure
6. see infra Part III.A.
7. See discussion infra Part I.B.
8. Cf. Garrett, supra note 2, at 1012 ("The choice, therefore, is not between no disclosure and full disclosure. Rather, policymakers need to determine what information should be disclosed and in what form.").
9. See infra Part II.A.3.
10. See infra Part II.A.
11. See infra Part II.B.
12. See infra Part IV.
13. See infra Part I.A.
14. 424 U.S. 1 (1976) (per curiam). The Court's treatment of these various concerns in Buckley and subsequent cases is examined in detail infra Part II.
15. See infra Part I.B.
16. Anthony Downs, An Economic Theory of Political Action in a Democracy, 65 (1957)
17. J. POL. ECON. 135, 141, In order to persuade voters that [his] policies are good for them, [a candidate] needs scarce resources such as television time, money for propaganda, and pay for precinct captains.
18. Edward B. Foley, EqualDollarsPerVoter: A Constitutional Principle of Campaign Finance, 94 (1994)
19. COLUM. L. REV. 1204, 1204, Money... is an indispensable element of any electoral campaign because money pays for the publicity and advertising that attempt to convince the undecided voters to support the campaign on election day
20. Spencer Overton, The Donor Class: Campaign Finance, Democracy, and Participation, 153
21. U. PA. L. REV. 73, 77 (2004) Massive disparities in the distribution of wealth cause disparities in political participation. The donor class effectively selects which candidates will be viable through large hard money contributions Of course, the precise extent of money's influence over politics is a question of much dispute. Compare
22. Bradley A. Smith, Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform, 105 (1996)
23. YALE L.J. 1049, 106467, 1074 & n.152,(disputing the "assumption" that "money buys elections" and alleging that "[t]hose few studies that have attempted to isolate and quantify the effect of campaign spending on votes have found that, once a candidate spends the minimal amount needed to penetrate the public consciousness, additional spending affects a very limited number of votes")
24. Kathleen M. Sullivan, Political Money and Freedom of Speech, (1997)
25. 30 U.C. DAVIS L. REV. 663, 677 [hereinafter Sullivan, Political Money] ("[T]here are limits to how far private funding can permit a candidate to deviate from positions acceptable to the mass of noncontributing voters: polls will discipline the candidate to respond to preferences other than those of his wealthiest backers.")
26. E. Joshua Rosenkranz, Faulty Assumptions in "Faulty Assumptions": A Response to Professor Smith's Critiques of Campaign Finance Reform, 30 (1998)
27. CONN. L. REV. 867, 886 ("Professor Smith's conception is contradicted by that of a veritable army of politicians, consultants, and operatives, each of whom behaves as if we were living in a world where campaign spending can win elections.").
28. There is much disagreement, however, over whether large contributions simply help the donor's preferred candidate get elected or if they can actually lead elected officials to change their policy positions.
29. Thomas F. Burke, The Concept of Corruption in Campaign Finance Law, 14 (1997)
30. CONST. COMMENT. 127, 139 n.45 (contending that campaign contributions influence legislators' votes) (collecting sources), and Daniel Hays Lowenstein, On Campaign Finance Reform: The Root of All Evil is Deeply Rooted, 18 HOFSTRA L. REV. 301, 309 [hereinafter Lowenstein, On Campaign Finance Reform] ("According to most scholars who have considered the question, economic interest contributors tend to follow a legislative [influencing] strategy."), with Smith, supra note 12, at 1068 & nn.11517 (arguing that while contributions may affect electoral outcomes, they do not change a legislator's policy positions or voting patterns). The significance of this distinction is discussed infra Part I.B.3.
31. Sullivan, Political Money, supra note 12, at 672. On this view, "unequal campaign outlays amount to a kind of metaphysical gerrymander by which some votes count more than others in that shadow election."
32. Sanford Levinson, Regulating Campaign Activ ity: The New Road to Contradiction?, 83 (1985)
33. MICH. L. REV. 939, 951 ("What we have done is to insist, even if not to explain why, that 'speech is special' and thus immune from the regulation that we complacently accept in other realms of our social life.") (reviewing ELIZA BETH DREW, POLITICS AND MONEY: THE NEW ROAD TO CORRUPTION (1983)). But see Sullivan
34. Political Money, supra note 12, at 673 (arguing that even if the analogy holds, "[c]onventional First Amendment norms of individualism, relativism, and antipaternalism preclude [legislative restrictions to impose] any such affirmative equality of influence.").
35. U.S. CONST. amend. XV ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."); id. amend. XIX ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."); Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966) (holding poll tax unconstitu tional under the Equal Protection Clause of the Fourteenth Amendment).
36. Other valuable political tools-such as "celebrity, time to volunteer, speaking ability, personal magnetism, and good looks"-tend to be "randomly distributed throughout society in a way that wealth is not." Overton, supra note 12, at 97.
37. See Bruce E. Cain, Moralism and Realism in Campaign Finance Reform, 1995 U. CHI. LEGAL F. 111, 127 ("[B]ecause money is a cardinalized value, individuals and groups can express the intensity of their preferences in a way that the singlevalued, equally weighted vote cannot."); David A. Strauss, Corruption, Equality, and Campaign Finance Reform, 94 COLUM.
38. L. REV. 1369, 1374 (1994) [hereinafter Strauss, Corruption and Campaign Finance Reform] ("[C]ontributions allow voters-that is, contributors-to register the intensity of their views."); see also Cass R. Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1393 (1994) ("If a candidate can accumulate a lot of money, it is probable that many people like what she has to say, or that even if the number of supporters is not so great, their level of enthusiasm is high indeed.").
39. See Downs, supra note 12, at 138.
40. Strauss, Corruption and Campaign Finance Reform, supra note 17, at 1378.
41. Sunstein, supra note 17, at 1392; see Burke, supra note 13, at 14344 (arguing that "[t]he Framers, in sum, embraced deliberative theory"); id. at 148 (concluding that "[d]eliberative theory is wellgrounded in American political philosophy and practice"); see also J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 YALE L.J. 1001, 1018 (1976) [hereinafter Wright, Is Money Speech?] ("Th[is] mechanistic conception tends to drain politics of its moral and intellectual content.").
42. David Cole has likewise argued that unregulated campaign contributions lead to poli cymaking based on factors other than reason, but through a different (though related) means: [C]apitalism and democracy are an uneasy mix. Free market capitalism threatens the free market of ideas by giving certain voices inordinate influence, not because of the power of their ideas, but because of the volume they can generate for their voices with dollars earned through commercial activities.... Absent government intervene tion of some kind, the marketplace of ideas, and in turn the election of our representatives, threatens to go to the highest bidder, YALE L. & POL'Y REV. 236, 237
43. David Cole, First Amendment Antitrust: The End of LaissezFaire in Campaign Finance, 9 (1991).
44. Foley, supra note 12, at 1204 ("The Constitution of the United States should con tain a principle, which I shall call 'equaldollarspervoter,' that would guarantee to each eligi ble voter equal financial resources for purposes of supporting or opposing any candidate or initiative on the ballot for any election held within the United States."); J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 COLUM. L. REV. 609, 62526 (1982) [hereinafter Wright, Money and Politics] ("Political equality is the cornerstone of American democracy. Today's electoral processes, tainted by huge inequalities in funds and special access for special interests, fall far short of that ideal and are moving further away every year."). Bruce Cain labels this the "moralist/idealist" perspective, as contrasted with the "realist/ proceduralist" perspective that takes intensity of feeling into account. See Cain, supra note 17.
45. Daniel Hays Lowenstein, Campaign Contributions and Corruption: Comments on Strauss and Cain, 1995 U. CHI. LEGAL F. 163, 17482 [hereinafter Lowenstein, Comments on Strauss and Cain] (arguing that the proceduralist perspective itself rests on a contested moral theory).
46. Strauss, Corruption and Campaign Finance Reform, supra note 17, at 1375 ("To some extent representatives are supposed to reflect their constituents' wishes. But on any plausible conception of representative government, elected representatives sometimes should exercise independent judgment.").
47. see generally Cole, supra note 21, at 247 ("Wealth poses a unique threat of systematic distortion in part because one of the most important issues the state addresses is the distribu tion of wealth itself. If those who hold favored positions in the existing distribution of wealth are allowed to use their inequitable distributions to maintain the status quo against majority desires, the legitimacy of the democratic process is directly undermined."). But see Richard Briffault, Nixon v. Shrink Missouri Government PAC: The Beginning of the End of the Buck ley Era?, 85 MINN. L. REV. 1729, 1769 (2001) (pointing out that low spending limits can also be anticompetitive).
48. For detailed investigations into the role of PACs and the influence they wield over polit ical candidates, see generally DREW, supra note 14; Fred Wertheimer & Susan Weiss Manes, Campaign Finance Reform: A Key to Restoring the Health of Our Democracy, 94 COLUM. L. REV. 1128, 113640 (1994); Wright, Money and Politics, supra note 22, at 61420.
49. See generally MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (2d ed. 1971). Of course, others believe that the solution to this problem is not to minimize the influence of money on politics altogether, but rather to encourage greater participation in PACs and other groups that help overcome the collective action problem. See, e.g., Overton, supra note 12, at 10607; Strauss, Corruption and Campaign Finance Reform, supra note 17, at 137475.
50. OLSON, supra note 28, at 5357; David A. Strauss, What is the Goal of Campaign Finance Reform?, 1995 U. CHI. LEGAL F. 141, 150 [hereinafter Strauss, What is the Goal?].
51. Strauss, What is the Goal?, supra note 29, at 14649 (discussing question of when it is appropriate for government decisions to be made by auction); cf. Sullivan, Political Money, supra note 12, at 667 (explaining that campaign finance issues pose an "analogical crisis" because we must "decide whether outlays of political money more resemble voting, on the one hand, or political debate, on the other").
52. Briffault, supra note 26, at 1764.
53. See generally Jane S. Schacter, Ely and the Idea of Democracy, 57 STAN. L. REV. 737 (2004).
54. See, e.g., Briffault, supra note 26, at 176465; Cain, supra note 17, at 138; Wertheimer & Manes, supra note 27, at 113436.
55. See Cain, supra note 17, at 138.
56. See William P. Marshall, The Last Best Chance for Campaign Finance Reform, 94 NW. U. L. REV. 335, 339 ("Challengers generally need greater funds in order to promote name recognition"); see also Foley, supra note 12, at 124345; Smith, supra note 12, at 107275; Sullivan, Political Money, supra note 12, at 68587. In addition, campaign finance limits would increase the relative influence of factors such as "good looks,... celebrity, and access to or control of the popular press," which might favor candidates from elite backgrounds. Smith, supra note 12, at 1077, 108081.
57. For a detailed discussion of bribery and related forms of public corruption, see Daniel H. Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLA L. REV. 784 (1985) [hereinafter Lowenstein, Political Bribery].
58. Rosenkranz, supra note 12, at 873.
59. For instance, one reform advocate notes that "the moment a politician takes office, his ability to raise campaign funds improves dramatically. In most cases, the new contributors... are driven to contribute not because of some newfound appreciation for the candidate's philos ophy, but because the candidate is suddenly in a position to deliver lucrative political favors." Rosenkranz, supra note 12, at 874; see also Lowenstein, On Campaign Finance Reform, supra note 13, at 30813 (noting this and other contribution patterns tied to the benefits of incum bency). Similarly, many large donors employ a "hedging strategy" by "giv[ing] large sums to both major parties." Sullivan, Political Money, supra note 12, at 679. This hedging strategy implies that these PACs believe that their contributions are influencing policy decisions rather than just electoral outcomes. See Lowenstein, On Campaign Finance Reform, supra note 13, at 312; Rosenkranz, supra note 12, at 87475; see also Wertheimer & Manes, supra note 27, at 1135 (asserting that "PAC money is generally an investment in the decisionmaking process in Congress" and that "contributions to challengers are seen as a waste of money. Moreover, few PACs are willing to run the risk of antagonizing an incumbent Member of Congress by contrib uting to his or her opponent."). To be sure, at least one empirical study has concluded that PAC contributions "generally do not maintain or change House members' voting patterns," and that PACs instead only "contrib ute in hopes of influencing the outcomes of elections." Janet M. Grenzke, PACs and the Con gressional Supermarket: The Currency is Complex, 33 AM. J. POL. SCI. 1, 19 (1989). However, the validity of the statistical inference used in this type of study has been seriously called into question. See Lowenstein, On Campaign Finance Reform, supra note 13, at 314 ("[R]oll call votes are the most visible actions of legislators, and therefore are the least likely settings in which legislators are willing to prefer the desires of contributors to the desires of constitu ents."); Rosenkranz, supra note 12, at 87779 (criticizing empirical focus on voting patterns).
60. Of course, if an elected official acts against the interests of her constituents, she could find herself removed from office rather quickly. In order for the bribery model of corruption to make sense, it must be that the official will sometimes act against the voters' interests without serious electoral repercussions. See Daniel R. Ortiz, The Democratic Paradox of Campaign Finance Reform, 50 STAN. L. REV. 893 (1998); see also Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 TEX. L. REV. 1705, 171718 (1999). This could occur, for instance, if voters fail to notice some of the adverse measures buried in detailed legislation, if voters are willing to overlook some adverse decisions by their represen tative because they favor her other positions, or if the official can use clever advertising to convince her constituents that a questionable decision really is in their interest. See, e.g., id. at 171923.
61. See JAMES C. SCOTT, COMPARATIVE POLITICAL CORRUPTION 34 (1972); Lowenstein, Political Bribery, supra note 36, at 800; John G. Peters & Susan Welch, Political Corruption in America: A Search for Definitions and a Theory, 72 AM. POL. SCI. REV. 974, 975 (1994). Another problem with defining corruption in terms of right or wrong decisions is that "if such a... definition of corruption is accepted, the determination of whether a particular policyinfluencing action is or is not corrupt will depend on whether the direction in which it seeks to influence policy is or is not desirable." Lowenstein, Political Bribery, supra note 36, at 804. Not only will this question of desirability often be highly controversial, but it is a decision that we normally delegate to the very same elected officials whose judgment we would now be calling into question.
62. Indeed, when possible, we should want public officials to have a stake in their deci sions, just as private corporations often compensate highlevel executives with stock options and performance bonuses. See generally FRED KAEN, A BLUEPRINT FOR CORPORATE GOVERN ANCE 17478 (2003). Policymakers who are personally invested in the outcome of their deci sions can reasonably be expected to consider the issues more thoroughly and to confront fewer potential conflicts of interest. Thus, for example, we often demand that politicians live in the district they represent or that members of a school board send their children to the public schools.
63. Lowenstein, Political Bribery, supra note 36, at 816 ("The only thing that may take many everyday political practices out of the literal coverage of the [bribery] statutes is the element of corrupt intent."). For an excellent extended treatment of what it means to act with corrupt intent, see id. at 798806.
64. Therefore, on the bribery model, corruption must be addressed through motivebased regulation. See generally Lowenstein, On Campaign Finance Reform, supra note 36, at 302. See also Cain, supra note 17, at 11318 (critiquing Lowenstein).
65. Some attempts to define corrupt intent may require an even greater showing of culpabil ity; the claim here is only that this counterfactual inquiry is required at a minimum. Note also that the counterfactual aspect of corrupt intent means that it will sometimes be an extraordina rily difficult inquiry, especially when the private gain coincides with other factors that might change the official's belief about what the public interest favors. For example, suppose that a candidate who seeks the support of a local civic group is offered its endorsement in exchange for agreeing to support a particular bill, and she agrees to do so. Cf. Cain, supra note 17, at 11516 (posing a similar hypothetical). One might at first assume that the candidate has changed her position because of the private gain she gets from the group's endorsement. How ever, it is also possible that the official changed her position not because of her private gain, but because she respects this group's views and has reconsidered her earlier position after learning of its opinion. Cf. Lowenstein, Political Bribery, supra note 36, at 83435, 84556. In order to determine if the private gain has caused the official to change her position, one must compare what the candidate does in light of the endorsement with what she would have done if the group had simply asked her to change her opinion without offering to endorse her for doing so.
66. United States v. Campbell, 684 F.2d 141, 148 (D.C. Cir. 1982) ("Payments to a public official for acts that would have been performed in any event-whether before or after those acts have occurred-are probably illegal gratuities rather than bribes."); United States v. Brewster, 506 F.2d 62, 72 (D.C. Cir. 1974) ("The bribery section makes necessary an explicit quid pro quo which need not exist if only an illegal gratuity is involved.").
67. This definition is adopted from Sunstein, supra note 17, at 1391. Cf. BLACK'S LAW DICTIONARY 1282 (8th ed. 2004) (defining quid pro quo as "[a]n action or thing that is ex changed for another action or thing of more or less equal value.... See Reciprocity.").
68. 18 U.S.C. § 201(b) (2006). The federal bribery statute also forbids the acceptance of an unlawful gratuity, which does not require a showing of corrupt intent, see id. § 201(c), but recognizes the substantial difference between these offenses by prescribing a maximum prison term of just two years for an unlawful gratuity compared to fifteen years for a bribe. Even then, a conviction for acceptance of an unlawful gratuity requires proof of a direct link between the gratuity and a "specific 'official act' for or because of which it was given." United States v. SunDiamond Growers of Cal., 526 U.S. 398, 414 (1999). A similar analogy can be made to the crime of extortion, which is prohibited by the Hobbs Act, 18 U.S.C. § 1951 (2006). Extortion is similar to bribery, except instead of a donor re questing a favor from the official, the official withholds something to which the prospective donor has a just entitlement, and the official then demands some payment in exchange for its return. In this regard, extortion is very similar to blackmail, and the contributor is seen as a victim rather than one of the perpetrators. Several critics of the bribery rationale for campaign finance reform, believing that quid pro quo campaign contributions are ineffective because an official who goes against the voters' interests will be voted out of office, nonetheless admit that extortion remains a legitimate concern. See Cain, supra note 17, at 12326; Strauss, What is the Goal?, supra note 29, at 15255. See generally Lowenstein, Comments on Strauss and Cain, supra note 22, at 18285 (discussing the significance of this point).
69. See generally ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 28 (1957).
70. Indeed, many courts have interpreted bribery statutes to reach cases involving campaign contributions. See Lowenstein, Political Bribery, supra note 36, at 808 nn.8688 and cases cited therein. But others have argued that there are significant differences between campaign contributions and traditional bribes: Campaign contributions are useful because they help get votes. Bribes, however, deal in a currency of selfinterest other than votes. If campaign contributions can only be used to persuade others to vote a certain way, then voters still have sovereignty-their votes are what matter in the end, and they can ignore or discount the messages they receive if they choose. Cain, supra note 17, at 117; see also Strauss, Corruption and Campaign Finance Reform, supra note 17, at 1372 (making this same distinction); Strauss, What is the Goal?, supra note 29, at 148 (same).
71. Buckley v. Valeo, 424 U.S. 1, 2728 (1976) (per curiam). Campaign contributions may also be immune from the federal prohibition on unlawful gratuities, which exempts funds given "as provided by law for the proper discharge of official duty." 18 U.S.C. § 201(c)(1).
72. ACKERMAN & AYRES, supra note 2, at 27 ("[T]he kinds of deals that are illegal (money for access) are not provable.").
73. The significant uncertainty over precisely what sorts of behavior qualify as "political corruption" is demonstrated clearly by Peters & Welch, supra note 40, at 97882. Peters and Welch present a survey of several hundred public officials in which the officials were each presented ten hypothetical actions by public officials and asked which ones they considered corrupt. Upon examining the results, they find that: the simple rank ordering of our ten examples shows at one end of the continuum a clustering of acts that are clearly illegal or represent a direct financial gain, at the other, acts that are minor influence peddling, and in between a set of acts representing a variety of conflictofinterest situations. Id. at 982.
74. See United States v. SunDiamond Growers of Cal., 526 U.S. 398, 412 (1999) ("[T]his is an area where precisely targeted prohibitions are commonplace, and where more general prohibitions have been qualified by numerous exceptions. Given that reality, a statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.").
75. See generally Samuel L. Bray, Power Rules, 110 COLUM. L. REV. (forthcoming 2009).
76. See Lowenstein, Political Bribery, supra note 36, at 850 ("Barring special circum stances, the mere provision of a personal benefit by a person interested in the recipient's official actions creates a strong inference of an intent to influence because there is no plausible alternative explanation of the gift.").
77. ACKERMAN & AYRES, supra note 2, at 7.
78. See Buckley v. Valeo, 424 U.S. 1, 1617 (1976); see also infra Part II.
79. See infra Parts III.B, IV.BC.
80. To be sure, concerns about quid pro quo corruption are not wholly independent of egali tarian concerns. See Strauss, Corruption and Campaign Finance Reform, supra note 17. To the extent observers care about politicians offering policy favors in exchange for campaign contri butions but have no objection to them doing so in exchange for actual votes, it must either be because these observers think financial pressure skews differently than voter pressure, cf. supra notes 2429 and accompanying text, or because we believe the role of the public official should be something different than refereeing between different interest groups, cf. supra notes 2023 and accompanying text. See generally Strauss, Corruption and Campaign Finance Re form, supra note 17. Indeed, the briberylike model presented here is based on a concern of the latter type: a belief that public officials should follow their own understandings of the public interest, which may or may not coincide with interest group pressures. Nevertheless, the ana lytical distinction between egalitarian rationales and corruptionbased rationales is important because they have very different implications for which transactions should be deemed prob lematic, as explained here.
81. A more sophisticated variation on the simple thought experiment offered here is presented in Lowenstein, Comments on Strauss and Cain, supra note 22, at 16874.
82. The first scenario is sometimes referred to as a "legislative" strategy and the second an "electoral" strategy. See Lowenstein, On Campaign Finance Reform, supra note 13, at 308; Smith, supra note 12, at 1064 n.92, 107576.
83. Cf. Sullivan, Political Money, supra note 12, at 674 ("[L]obbying and demonstrations could not, without great alteration in First Amendment understandings, be regulated on the ground that their leaders had amassed too many resources."). Lowenstein likewise draws a distinction between trying to influence a public official's actions, which he argues is a violation of political bribery laws, and trying to influence the outcome of an election, which he sees as permissible. Lowenstein, Political Bribery, supra note 36, at 850.
84. This supplydemand model has previously been suggested by Justin A. Nelson, Note, The Supply and Demand of Campaign Finance Reform, 100 COLUM. L. REV. 524 (2000); Sullivan, Political Money, supra note 12, at 66667.
85. 424 U.S. 1 (1976) (per curiam).
86. Pub. L. No. 93443, 88 Stat. 1263 (1974) (codified as amended at 2 U.S.C. §§ 43155 (2006, Supp. I 2007, Supp. II 2008)).
87. Buckley, 424 U.S. at 48. The Court reiterated this point in a later passage: "The ancil lary interest in equalizing the relative financial resources of candidates competing for elective office... provides the sole relevant rationale for § 608(a)'s expenditure ceiling. That interest is clearly not sufficient to justify the provision's infringement of fundamental First Amendment rights." Id. at 54.
88. Id. at 2627.
89. Id. at 16.
90. Id. at 26.
91. Id. at 2627; see also FEC v. Nat'l Conservative Political Action Comm., 470 U.S. 480, 497 (1985) ("Corruption is a subversion of the political process. Elected officials are influ enced to act contrary to their obligations of office by the prospect of financial gain to them selves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors."). It is important to distinguish this narrow sense of "corruption" as quid pro quo from the common use of the term in popular discourse to refer to any way in which wealthy interests exert undue influence over the political process, which can encompass egalitarian concerns. Some articles inadvertently conflate these two very different ideas. See, e.g., Sullivan, Political Money, supra note 12, at 67882.
92. Buckley, 424 U.S. at 58.
93. Id. at 2627.
94. Id. at 2629.
95. Id. at 4648. However, it is important to distinguish campaign expenditures from so called independent expenditures, such as when a wealthy supporter pays to run her own com mercial in support of a candidate rather than donating funds to the campaign for its official advertising. These independent expenditures, when used to advocate for a candidate, remain problematic because "an 'independent' expenditure may inspire just as much gratitude by the candidate as a direct contribution." Sullivan, Political Money, supra note 12, at 667. This may be true even for expenditures not officially coordinated with a campaign. If these "election eering communications" may be regulated, they then need to be distinguished from "issue advertising" that is unrelated to any particular campaign, and genuine issue advertising needs to be distinguished from "sham issue advertising" that is really intended to support a candi date. For discussions of these issues, see generally McConnell v. FEC, 540 U.S. 93, 12632, 189211 (2003), upholding campaign finance law regulating electioneering communications against facial challenge for vagueness and overbreadth, and FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007), holding unconstitutional, in an asapplied challenge, application of same law to genuine issue ads.
96. One can imagine that expenditure limits might limit quid pro quo corruption in more indirect ways. For instance, if a candidate expects to raise enough money to reach the spending limit without much difficulty, then she will have no need to take a contribution that requires her to change her policy positions.
97. See FEC v. Nat'l Conservative Political Action Comm., 470 U.S. 480, 501 (1985).
98. See Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604 (1996).
99. 548 U.S. 230 (2006); see also Nixon v. Shrink Miss. Gov't PAC, 528 U.S. 377, 397 (2000) ("[T]he outer limits of contribution regulation... ask[] whether... the limits were so low as to impede the ability of candidates to 'amas[s] the resources necessary for effective advocacy.'" (quoting Buckley, 424 U.S. at 21) (last alteration in original)).
100. See Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990). But see FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 25665 (1986) (requiring exception for nonprofit corpo rations formed solely to advance a political position rather than engage in business activity).
101. See Cole, supra note 21, at 23637.
102. See Reynolds v. Sims, 377 U.S. 533 (1964); Baker v. Carr, 369 U.S. 186 (1962). Thus, Justice Breyer has argued that Buckley's rejection of all egalitarian concerns "cannot be taken literally." Shrink Miss., 528 U.S. at 402 (Breyer, J., concurring); see also Cole, supra note 21, at 24748 (offering additional examples).
103. Part IV, infra, argues that disclosure of contributor data in the form of aggregate statis tics does not impose a serious burden on speakers and thus survives First Amendment scrutiny. Similarly, Buckley upheld a limited public financing scheme applied to presidential elections and funded by a voluntary checkoff item on federal tax returns. Buckley, 424 U.S. at 85108 (per curiam). Because public financing "facilitate[s] and enlarge[s] public discussion and participation in the electoral process," the Court explained, it "furthers, not abridges, pertinent First Amendment values." Id. at 9293.
104. Thus it is apparent that some critics of campaign finance reform inadvertently overstate their hand. For instance, Kathleen Sullivan has asserted that "[t]he key point for now is simply that, short of a major revision of general First Amendment understandings, campaign finance re form may not be predicated on equality of citizen participation in elections...." Sullivan,
105. Political Money, supra note 12, at 675. This is true of campaign finance reform measures that may be readily characterized as limitations on speech, such as contribution and expenditure limits, but the First Amendment may be less of an impediment to other measures such as disclosure requirements and public financing.
106. See, e.g., McConnell v. FEC, 540 U.S. 93, 13738 (2003) ("Considerations of stare decisis, buttressed by the respect that the Legislative and Judicial Branches owe to one another, provide additional powerful reasons for adhering to the analysis of contribution limits that the Court has consistently followed since Buckley was decided.").
107. 494 U.S. 652 (1990).
108. Id. at 65960.
109. Indeed, some scholars came to suggest that Austin may have simply been an "aberration." See, e.g., Daniel Hayes Lowenstein, A Patternless Mosaic: Campaign Finance and the First Amendment after Austin, 21 CAP. U. L. REV. 381, 383 (1992).
110. 528 U.S. 377 (2000).
111. Id. at 389.
112. Id. (emphasis added). Richard Hasen shows that the quid pro quo rationale cannot sup port low contribution limits or total bans through a simple question: "Which candidate for state or federal office would be bought (or even appear to be bought) by a $1075 donation, an individual's limited hard money donation made to a political party, or a small contribution from an ideological corporation?" Richard L. Hasen, Buckley is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission, 153 U. PA. L. REV. 31, 57 (2004) [hereinafter Hasen, Buckley is Dead].
113. 540 U.S. 93 (2003). McConnell is a lengthy decision, spanning nearly 300 pages in the U.S. Reports, and has already sparked a voluminous literature. The aim here is not to provide a comprehensive account, but rather to outline the ways in which the McConnell decision represents a shift in the Court's attitude toward the different rationales for campaign finance regulation. For excellent early commentary on McConnell and its implications, see Symposium, McConnell v. Federal Election Commission, 3 ELECTION L.J. 115 (2004).
114. For a comprehensive account of the jurisprudential transformation leading up to McConnell, see generally Hasen, Buckley is Dead, supra note 90.
115. Pub. L. No. 107171, 116 Stat. 81 (2002) (codified at 2 U.S.C. § 441i(a) (2006)).
116. See McConnell, 540 U.S. at 14344, 150. The McConnell decision lays out the history and definition of "softmoney" contributions, also known as "nonfederal money," which include funds used for state and local elections, "getoutthevote" campaigns, and generic party advertising. See id. at 12226.
117. See id. at 16173.
118. Hasen, Buckley is Dead, supra note 90, at 33; see also id. at 4950 (discussing this issue in detail). For a discussion of several other holdings in McConnell that cannot be supported on Buckley's narrow quid pro quo notion of corruption, see id. at 4857.
119. Cf. supra Part II.A.
120. Cf. supra Part I.B.
121. Hasen, Buckley is Dead, supra note 90, at 34, 4246. See generally Robert F. Bauer, When "the Pols Make the Calls": McConnell's Theory of Judicial Deference in the Twilight of Buckley, 153 U. PA. L. REV. 5 (2004).
122. Hasen, Buckley is Dead, supra note 90, at 62; cf. id. at 43 (discussing Shrink Mis souri's above mentioned extension of the concept of corruption beyond quid pro quo arrangements).
123. For a review of the empirical data on public perceptions of how the campaign finance system contributes to corruption in government, see Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. PA. L. REV. 119 (2004); see also Wertheimer, supra note 27, at 112930, for a collection of the results of numerous public opinion polls.
124. See McConnell v. FEC, 540 U.S. 93 (2003).
125. 548 U.S. 230 (2006).
126. Justice Alito, however, declined to join the portions of Breyer's opinion discussing Buckley's continued validity, explaining that respondents' call for the Court to reconsider that decision had not been properly raised. See id. at 263 (Alito, J., concurring in part and concur ring in the judgment).
127. Id. at 249 (plurality opinion).
128. Richard L. Hasen, The Newer Incoherence: Competition, Social Science, and Balancing in Campaign Finance Law After Randall v. Sorrell, 68 OHIO ST. L.J. 849, 852-53 (2007) ("[T]he Court's use of competition in Randall appears evanescent, perhaps to be replaced in a few years with a more coherent, but considerably less deferential, deregulationist approach.").
129. 28 S. Ct. 2759 (2008).
130. 2 U.S.C. § 441a-1(a) (2006).
131. See id.; see also Davis, 128 S. Ct. at 2766-67.
132. See Davis, 128 S. Ct. at 2773.
133. See Davis, 128 S. Ct. at 2773.
134. citing Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 705 (1990) (Kennedy, J., dissenting) and Nixon v. Shrink Miss. Gov't PAC, 528 U.S. 377, 428 (2000) (Thomas, J., dissenting).
135. Buckley v. Valeo, 424 U.S. 1, 60-74 (1976) (per curiam).
136. Buckley v. Valeo, 424 U.S. 1, 68.
137. Buckley v. Valeo, 424 U.S. 1, 67 (quoting LOUIS D. BRANDEIS, OTHER PEOPLE'S MONEY AND HOW THE BANKERS USE IT 62 (Nat'l Home Library Found. 1933)).
138. Garrett, supra note 2, at 1011 (discussing "the widespread acceptance of disclosure"); William McGeveran, Mrs. McIntyre's Checkbook: Privacy Costs of Political Contribution Disclosure, 6 U. PA. J. CONST. L. 1, 1-2 & nn.3-7 (2003); Trevor Potter, Buckley v. Valeo, Political Disclosure and the First Amendment, 33 AKRON L. REV. 71, 71-72 & n.3 (1999); Clyde Wilcox, Designing Campaign Finance Disclosure in the States: Tracing the Tributaries of Campaign Finance, 4 ELECTION L.J. 371, 371 (2005) ("[A]mong all the proposals for campaign finance regulation, only disclosure comes close to universal acceptance.").
139. LARRY J. SABATO & GLENN R. SIMPSON, DIRTY LITTLE SECRETS: THE PERSISTENCE OF CORRUPTION IN AMERICAN POLITICS 320 (1996)
140. BRADLEY A. SMITH, UNFREESPEECH: THE FOLLY OF CAMPAIGN FINANCE REFORM 32, 133-36 (2001)
141. Kathleen M. Sullivan, Against Campaign Finance Reform, 1998 UTAH L. REV. 311, 327 [hereinafter Sullivan, Against Reform] (proposing mandatory disclosure as a possible alternative to direct campaign finance restrictions and suggesting that this "would seem justified by the massive gains in democratic accountability").
142. Sullivan, Political Money, supra note 12, at 688. 119 Buckley, 424 U.S. at 68 (per curiam).
143. 357 U.S. 449 (1958).
144. 357 U.S. 69-70 (quoting NAACP v. Alabama, 357 U.S. 449, 462 (1958)) (alteration in original); see also Bates v. City of Little Rock, 361 U.S. 516, 523-24 (1960) (holding unconstitutional a local tax ordinance that would have required NAACP to disclose its member list, where "[t]here was substantial uncontroverted evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm," and "[t]here was also evidence that fear of community hostility and economic reprisals that would follow public disclosure of the membership lists had discouraged new members from joining the organizations and induced former members to withdraw").
145. Buckley, 424 U.S. at 71 (per curiam).
146. Buckley, 424 U.S. at 74 (emphasis added).
147. 459 U.S. 87 (1982).
148. Buckley, 424 U.S. at 88.
149. Buckley, 424 U.S. at 68-72 (per curiam) (discussing problems with disclosure as "appli[ed] to contributions to minor parties and independent candidates"); Brown, 459 U.S. at 92-98 (same); Garrett, supra note 2, at 1011 ("Publicity... may undermine the ability of disliked or distrusted groups to influence policy in ways consistent with their interests." (emphasis added)); Potter, supra note 116, at 104 ("By contrast, the Court has yet to strike a political disclosure provision claimed to burden a large and/or presumably politically powerful organization.").
150. CAL. SEC'Y OF STATE, CALIFORNIA GENERAL ELECTION-OFFICIAL VOTER INFORMATION GUIDE 54-57 (2008), available at http://www.voterguide.sos.ca.gov/pdf-guide/vignov-2008-principal.pdf.
151. John R. Lott Jr. & Bradley Smith, Op.-Ed., Donor Disclosure Has Its Downsides, WALL ST. J., Dec. 26, 2008, at A13
152. Bob Bauer, Disclosure and Two Critics, http://www.moresoftmoneyhardlaw.com/updates/disclosure.html?AID=1393 (Dec. 26, 2008).
153. John Wildermuth, Prop. 8 Among Costliest Measures in History, S.F. CHRON., Feb. 3, 2009, at B1.
154. CAL. SEC'Y OF STATE, STATEMENT OF VOTE 7 (2008), available at http://www.sos.ca.gov/elections/sov/2008_general/sov_complete.pdf.
155. Wyatt Buchanan, Prop. 8 Protests Could Become National Movement, S.F. CHRON., Nov. 15, 2008, at A1.
156. Jennifer Garza, Prop. 8 Victors Upset by Personal Attacks, SACRAMENTO
157. BEE, Nov. 12, 2008, at A1; Alison Stateman, What Happens If You're on Gay Rights' "Enemies List," TIME, Nov. 15, 2008, at A1; see also, e.g., Bob Egelko, Prop. 8 Supporters Want Donors Anonymous, S.F. CHRON., Jan. 9, 2009, at B3; Press Release, ProtectMarriage.com, Prop 8 Urges Court to Enjoin Campaign Finance Reporting Rules That Have Resulted in Harassment of Prop 8 Supporters (Jan. 29, 2009), available at http://protectmarriage.com/article/prop-8-urges-court-to-enjoin-campaign-finance-reporting-rules-that-have-resulted-in-harassment-ofprop-8-supporters.
158. Brad Stone, Prop 8 Donor Web Site Shows Disclosure Law is 2-Edged Sword, N.Y. TIMES, Feb. 7, 2009, at B3.
159. Jennifer Garza, Prop. 8 Fallout Doesn't Daunt Ice Cream Shop's Owner, SACRAMENTO BEE, Feb. 16, 2009, at 3B.
160. Jim Carlton, Gay Activists Boycott Backers of Prop 8, WALL ST. J., Dec. 27, 2008, at A3
161. Steve Lopez, A Life Thrown Into Turmoil by $100 Donation for Prop. 8, L.A. TIMES, Dec. 14, 2008, at B1.
162. Stone, supra note 133. 137 See, e.g., Police Suspect Prop. 8 Behind Vandalism, UNITED PRESS INT'L, Nov. 24, 2008.
163. Martin Wisckol, Prop. 8 Leaders Accuse Foes of Harassment, Intimidation, ORANGE COUNTY REG., Nov. 14, 2008.
164. Tamara Audi, Gay Activists Target Businesses, WALL ST. J., Aug. 27, 2008, at A3; James Hebert, Theater Company Leaves in Protest, SAN DIEGO UNION-TRIB., Feb. 10, 2009, at A3; Lott & Smith, supra note 128; Stone, supra note 133; Wisckol, supra note 138.
165. Jennifer Garza, Mormons Step Up Security After Anti-Prop. 8 Vandalism, SACRAMENTO BEE, Nov. 17, 2008, at 9A; Ashley Surdin, Protesters Target Supporters of Gay Marriage Ban, WASH. POST, Nov. 15, 2008, at A12.
166. Tony Semerad, Utahns, LDS Church Spent More on Prop. 8 Than Previously Known, SALT LAKE TRIB., Feb. 9, 2009.
167. Los Angeles Times, The Gay-Marriage Battle: Follow the Donors, http://www.latimes.com/news/local/la-metro-prop-8,0,2463893.htmlstory (last visited Oct. 31, 2009)
168. SFGate, Proposition 8 Contributions, http://www.sfgate.com/webdb/prop8/ (last visited Oct. 31, 2009)
169. Sacramento Bee, Search for Prop. 8 Donors, http://www.sacbee.com/1098/story/1392716.html (last visited Oct. 31, 2009).
170. California Secretary of State, Campaign Finance: Proposition 008, http://calaccess.ss.ca.gov/Campaign/Measures/Detail.aspx?id=1302602&session=2007 (last visited Oct. 26, 2009).
171. Prop 8 Maps, http://www.eightmaps.com/ (last visited Oct. 31, 2009)
172. Stone, supra note 133 (discussing the effect of eightmaps.com and proposals for reform).
173. Bob Keefe, Prop. 8 Backlash Reaches Texas, AUSTIN AM.-STATESMAN, Nov. 25, 2008
174. William M. Welch, Prop. 8 Foes Turn to "Blacklist" Tactics, USA TODAY, Dec. 21, 2008. Californians Against Hate, Dishonor Roll, http://www.californiansagainsthate.com/dishonorRoll.html (last visited Oct. 26, 2009).
175. Richard Roesler, Group Will Publish Names of Partner-Rights Opponent, THE SPOKESMAN-REV., June 3, 2009; WhoSigned.org, http://www.whosigned.org/ (last visited Oct. 26, 2009).
176. Cf. supra notes 119-26.
177. Cf. Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87 (1982)
178. Buckley v. Valeo, 424 U.S. 1, 68-72 (1976) (per curiam).
179. Kenneth P. Vogel, Bauer's New, Unmatched Legal Power, POLITICO, Feb. 2, 2009, http://www.politico.com/news/stories/0209/18273.html.
180. Bauer, supra note 128. 152 Potter, supra note 116, at 72. 153 See infra Part III.A.
181. Symposium, The Brennan Center Jorde Symposium on Constitutional Law, 91 CAL. L. REV. 641 (2003) (symposium issue on ACKERMAN & AYRES, supra note 2); Symposium, Commentaries on Bruce Ackerman and Ian Ayres's Voting with Dollars: A New Paradigm for Campaign Finance Reform, 37 U. RICH. L. REV. 935 (2003) (same).
182. Buckley v. Valeo, 424 U.S. 67, 68 (per curiam).
183. Rosenkranz, supra note 12, at 896; see also ACKERMAN & AYRES, supra note 2, at 4 ("With every deal open and aboveboard, let the voters decide whether a big gift or giver taints the candidate's integrity.").
184. Issacharoff & Karlan, supra note 39
185. Sullivan, Political Money, supra note 12, at 687-89.
186. ACKERMAN & AYRES, supra note 2, at 5 ("Liberals and conservatives have increasingly converged on the 'full information' plank of the traditional reform agenda-to the point where it is fast becoming a Motherhood issue."); Garrett, supra note 2, at 1011
187. GOVERNOR'S BLUE-RIBBON COMM'N ON CAMPAIGN FIN. REFORM, STATE OF WIS., REPORT OF THE COMMISSION ch. 2, app. I (1997) (concluding that "[t]he Wisconsin campaign finance system ought to set as a goal the instantaneous reporting and disclosure of all relevant campaign finance information"), available at http://www.lafollette.wisc.edu/campaign_reform/final.htm.
188. Sullivan, Political Money, supra note 12, at 668
189. Wertheimer & Manes, supra note 27, at 1140-42 (leaders of reform advocacy group Common Cause detailing the "bun- dling loophole").
190. Sullivan, Political Money, supra note 12, at 668. 161 See Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, § 204, 121 Stat. 735, 744-46 (codified at 2 U.S.C. § 434(i) (Supp. I 2007)); Reporting Contributions Bundled by Lobbyists, Registrants and the PACs of Lobbyists and Registrants, 72 Fed. Reg. 62,600 (proposed Nov. 6, 2007) (to be codified at 11 C.F.R. § 104.22).
191. Issacharoff & Karlan, supra note 39, at 1727-28; Ortiz, supra note 39.
192. ACKERMAN & AYRES, supra note 2, at 27 (discussing the problems that "low voter motivation" causes for the full disclosure model). Ackerman and Ayres thus refer to current disclosure schemes as "transparency in name only." Bruce Ackerman & Ian Ayres, The Secret Refund Booth, 73 U. CHI. L. REV. 1107, 1107 (2006). But see Robert F. Bauer, Not Just a Private Matter: The Purposes of Disclosure in an Expanded Regulatory System, 6 ELECTION L.J. 38, 52 (2007) (asserting that "[a] network of media and nonprofit organizations, dedicated to the 'money in politics' narrative, provides the expertise, because it has both the resources and the interests, to make sense of the numbers."); Sullivan, Political Money, supra note 12, at 688 ("If the lists of names and figures seemed too boring to capture general attention, enterprising journalists could 'follow the money' and report on any suspect connections between contributions and policymaking.").
193. ACKERMAN & AYRES, supra note 2, at 94-95.
194. See supra notes 159-61 and accompanying text.
195. Ackerman & Ayres, The Secret Refund Booth, supra note 163, at 1115 & n.24.
196. generally, e.g., Elizabeth Garrett & Daniel A. Smith, Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy, 4 ELECTION L.J. 295 (2005) (surveying some of the tactics used to evade disclosure and obscure the real source of political money)
197. Wertheimer & Manes, supra note 27, at 1140-42 (detailing use of the "bundling loophole").
198. Ackerman & Ayres, The Secret Refund Booth, supra note 163, at 1117 (arguing that whenever we plug one gap in the disclosure scheme, "the next electoral cycle would precipitate a search for an unregulated technique serving the same purpose," and thus "[a]n ongoing cycle of cat-and-mouse would ensue"). See generally Issacharoff & Karlan, supra note 39, at 1705-17 (discussing the difficulty of designing a disclosure system that cannot be circumvented).
199. McGeveran, supra note 116, at 1-24 (discussing the various ways in which disclosure requirements may chill political speech, particularly with respect to certain marginalized groups).
200. discussion supra Part II.B.
201. SMITH, supra note 117, at 90-91 (detailing administrative costs of monitoring and enforcing campaign finance regulations).
202. ACKERMAN & AYRES, supra note 2, at 128-39 (detailing this concern and proposing several new measures to protect the FEC's independence); see also Thomas Merrill, Capture Theory and the Courts: 1967-1983, 72 CHI.-KENT L. REV. 1039 (1997).
203. supra Part I.A.
204. Richard Briffault, Reforming Campaign Finance Reform: A Review of Voting with Dollars, 91 CAL. L. REV. 644, 660-61 (2003) (reviewing ACKERMAN & AYRES, supra note 2).
205. See Sullivan, Against Reform, supra note 117, at 326 ("Mandatory disclosure... places the question of undue influence or preferential access in the hands of voters, who, aided by the institutional press, can follow the money and hold representatives accountable for any trails they don't like."); Sullivan, Political Money, supra note 12, at 690 ("Political money [c]ould itself be an election issue; a candidate would have to decide which was worth more to her-the money, or the bragging rights to say that she did not take it."). 176 One empirical study to address the issue concluded that "mere disclosure fails to produce more competitive elections or reduce the impact of special or large contributions on the political process." David Schultz, Disclosure is Not Enough: Empirical Lessons from State Experiences, 3 ELECTION L.J. 349, 350 (2005).
206. Indeed, while "[t]he two initiatives may seem diametrically opposed,... they share a common goal: informational parity. Both systems try to guarantee that candidates know no more about their gifts than the public does." ACKERMAN & AYRES, supra note 2, at 94; see also Ackerman & Ayres, The Secret Refund Booth, supra note 163, at 1111 (describing "the principle of symmetric information: candidates should not know more than the general public about the identity of their contributors. Both publicity and anonymity strategies should be seen as tools for achieving the larger aim of informational symmetry.").
207. ACKERMAN & AYRES, supra note 2. Ackerman and Ayres also propose a comprehensive public financing system that would credit each citizen with an equal amount of "Patriot dollars," which could only be used to fund political campaigns. See id. at 4-5, 7, 12-24, 66-92, 150-54. The merits and mechanics of public financing have developed an extensive literature and are largely beyond the scope of this Article, though a few brief points are worth noting. Public financing could in one sense be conceived of as a third approach to the disclosure problem, one which seeks to "drown out" the corrupting influence of private financing by injecting massive amounts of public funds into the campaign system (although doing this successfully might be prohibitively costly). It differs markedly from these other model approaches, however, in that public financing would inevitably have a tremendous substantive effect on the balance of resources between candidates; indeed, advocates of public financing often focus on electoral competitiveness rather than any explicit concern about corruption. At least one prominent study of public financing in state elections has found that it failed to increase electoral competitiveness, see Kenneth R. Mayer & John M. Wood, The Impact of Public Financing on Electoral Competitiveness: Evidence from Wisconsin, 1964-1990, 20 LEGIS. STUD. Q. 69 (1995)
208. ACKERMAN & AYRES, supra note 2, at 6, 25-44, 48-50, 93-110. While this government-run blind trust would pose some administrative difficulties and would need to be funded by tax dollars, advocates of full disclosure acknowledge that a similar government role might be necessary on that model as well. See, e.g., Sullivan, Against Reform, supra note 117, at 327 ("If there were concerns that candidates might chisel on such reporting, ...a government agency ... might act as a clearinghouse to collect political contributions and to forward them to candidates while ensuring simultaneous reporting on the Internet.").
209. Ackerman & Ayres, The Secret Refund Booth, supra note 163, at 1108-09 & nn.5-7
210. Joel W. Johnson, The Rival Partners' Finance Game: Electoral Institutions, Competition, and Campaign Finance in Chile 6, 40-43 (Mar. 27, 2007) (unpublished manuscript), available at http://dss.ucsd.edu/~jwjohnso/JWJ%20-%20MPSA2007%20chile.pdf.
211. ACKERMAN & AYRES, supra note 2, at 6, 27-28, 101-04. Ackerman and Ayres also detail several measures to defeat attempts to circumvent this forced anonymity through the specific timing or amount of a donation. See id. at 48-50, 93-110, 104-08, 113-18, 227-31.
212. Pamela S. Karlan, Elections and Change Under Voting with Dollars, 91 CAL. L. REV. 705, 707-14 (2003) (reviewing ACKERMAN & AYRES, supra note 2) (contending that "the pedigree and extent of anonymity are more complicated than [Ackerman and Ayres]suggest").
213. ACKERMAN & AYRES, supra note 2, at 6 ("Just as the secret ballot makes it more difficult for candidates to buy votes, a secret donation booth makes it harder for candidates to sell access or influence."). The analogy between campaign contributions and vote-buying is also discussed by Ortiz, supra note 39, at 910-13.
214. Garrett, supra note 2, at 1022-38 (discussing research on how voters use this information to make informed decisions).
215. supra note 17 and accompanying text.
216. supra notes 24-29 and accompanying text.
217. See Cain, supra note 17, at 127 ("Recent research reveals that under certain conditions voters are likely to use information about contributions to infer what candidates stand for and what initiative measures mean: they are a kind of information cue that voters can use when they are otherwise uncertain about how to vote."); Karlan, supra note 181, at 720 ("[I]n deciding which candidate to support ... an engaged citizen can consider information about the likely base of a candidate's time-honored support.")
218. Michael S. Kang, Democratizing Direct Democracy: Restoring Voter Competence Through Heuristic Cues and "Disclosure Plus," 50 UCLA L. Rev. 1141, 1157-59 (2003) (discussing interest group support as a heuristic cue for voters).
219. ACKERMAN & AYRES, supra note 2, at 30-32.
220. Cain, supra note 17, at 128 ("Ironically, money may yield more information in initiative campaigns, in which little or no regulation exists beyond disclosure, than in candidate campaigns that respect contribution limits and expenditure caps.").
221. Burke, supra note 13, at 128 (arguing that "[a]ny adequate standard of corruption ... must be grounded in a convincing theory of representation").
222. Ackerman & Ayres, The Secret Refund Booth, supra note 163, at 1115 (reporting that "[e]xisting federal law requires timely public disclosure of a contributor's name, address, and occupation").
223. For a detailed discussion of how exit poll data is collected and presented, see Richard Hilmer, Exit Polls-A Lot More than Just a Tool for Electoral Forecasts, in PUBLIC OPINION POLLING IN A GLOBALIZED WORLD 93, 106-07 (Marita Carballo & Ulf Hjelmar eds., 2008) ("The sample precincts are categorized according to regional, economic, social, and political factors (e.g. region, city, rates of unemployment, strength of parties, etc.). Pre-structured tables periodically provide the party results for each aggregate category...."). The many ways in which these different factor groupings can be used to structure an optimal disclosure regime are explored infra Parts IV.B-C.
224. supra Part III.B.
225. Lowenstein, Political Bribery, supra note 36, at 834.
226. Cain, supra note 17, at 140.
227. Buckley v. Valeo, 424 U.S. 1, 60-74 (1976) (per curiam); ACKERMAN & AYRES, supra note 2, at 94-95.
228. See supra notes 178-82 and accompanying text. 197 See supra Part II.B.
229. As characterized by Peter Schuck, "special interests ... include any group that pursues contested political and or policy goals, and that is widely regarded by the public as being one contending interest among others." Peter Schuck, Against (and For) Madison: An Essay in Praise of Factions, 15 YALE LAW & POL'Y REV. 553, 558 (1997). It should be noted, however, that some special interests might not be as easy to detect in campaign finance data as others, depending on which statistics are collected and disclosed.
230. ROBERT DAHL, DILEMMAS OF PLURALIST DEMOCRACY: AUTONOMY AND CONTROL (1982); ROBERT DAHL, PLURALIST DEMOCRACY IN THE UNITED STATES: CONFLICT AND CONSENT (1967)
231. V.O. KEY, POLITICS, PARTIES, AND PRESSURE GROUPS (1958); ROBERT DAHL, A PREFACE TO DEMOCRATIC THEORY (1956).
232. Wright, Is Money Speech?, supra note 20, at 1016.
233. See supra notes 184-86 and accompanying text.
234. Karlan, supra note 181, at 712 ("[A]s a descriptive matter, while it is generally difficult to determine how any particular individual has voted, it is not difficult to make quite intelligent estimates about the choices of voters within a particular category.").
235. Wright, Is Money Speech?, supra note 20, at 1017. See generally OLSON, supra note 28. Of course, Wright notes, "[f]or the pluralist, this imbalance is a virtue to be embraced, not a flaw to be redressed." Wright, Is Money Speech?, supra note 20, at 1017.
236. Wright, Is Money Speech?, supra note 20, at 1018. 205 Lowenstein, Political Bribery, supra note 36, at 833-34; see also id. at 846-47 (refer- ring to campaign contributions by special interest groups as "the most difficult case" and arguing against permitting such contributions because they provide value to the candidate regardless of "the extent the voters identify with or approve of [the group]").
237. WIS. STAT. § 13.05 (West 2008).
238. People ex rel. Dickinson v. Van de Carr, 84 N.Y.S. 461, 464 (1903); see also Lowenstein, Political Bribery, supra note 36, at 813-15 (discussing the difficulty of distinguishing logrolling from traditional bribes under most bribery statutes).
239. Karlan, supra note 181, at 709 (noting that "mediating institutions like political parties... can serve as a focus for organizing and mobilization").
240. supra Part I.A.1.
241. Karlan, supra note 181, at 717-21 (suggesting that contributions should be "tagged" with information about the geographic region in which the donor resides).
242. JEFFREY M. STONECASH, CLASS AND PARTY IN AMERICAN POLITICS (2000). The economic concept of rent-seeking in this context has been concisely explained by Richard Hasen: Rent seeking occurs when resources are used in order to capture a monopoly right instead of being put to a productive use.... [O]rganized interest groups expend their resources competing for political favors, such as tax breaks or subsidies, instead of putting them to some productive use. Rent seeking is Kaldor-Hicks inefficient because it leads to an overall decline in social wealth.
243. Richard L. Hasen, Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers, 84 CAL. L. REV. 1, 9 (1996) (citing Gordon Tullock, Rent Seeking, in THE NEW PALGRAVE: THE WORLD OF ECONOMICS 604 (John Eatwell et al. eds., 1991)).
244. That is, it might "exacerbate the tendency of politics to become a process of accommodation among groups with particular selfish interests, instead of an effort to reach the best decisions for society as a whole." Strauss, Corruption and Campaign Finance Reform, supra note 17, at 1376; see also Garrett, supra note 2, at 1042 (arguing that "[a]ny mandatory disclosure statute should be tailored to provide only the information most necessary for voter competence").
245. RONALD DWORKIN, FREEDOM'S LAW 17, 25 (1996)
246. JOHN RAWLS, POLITICAL LIBERALISM 360-61 (1993). Similarly, Justice Stephen Breyer has argued for the importance of "broadening the base of a candidate's meaningful financial support, and encouraging greater public participation." Stephen Breyer, Our Democratic Constitution, 77 N.Y.U. L. REV. 245, 253 (2002). For a discussion of these competing views of democracy and an argument that the equal respect view is most consistent with modern practice
247. Scott M. Noveck, Is Democracy Compatible with Judicial Review?, 6 CARDOZO PUB. L. POL'Y & ETHICS J. 401 (2008).
248. Overton, supra note 12, at 100-04; see also id. at 98 ("To the extent one values diversity in concentrations of power, the democratic sphere should be as independent as possible from concentrated power in the economic sphere.").