On political corruption

Harvard Law Review

Volumn 124, Issue 1, 2010, Pages 118-142

  Issacharoff, Samuel ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 79851487020     PISSN: 0017811X     EISSN: None     Source Type: Journal    
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References (208)

1. See, e.g., Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (codi-fied in scattered sections of 2, 18, 28, 36, and 47 U.S.C.
2. Federal Election Campaign Act Amend-ments of 1974, Pub. L. No. 93-443, 88 Stat. 1263
3. (codified as amended in scattered sections of 2, 5, 18, 26, and 47 U.S.C.), partially invalidated by Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).
4. E.g., Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 398 (2000) (Stevens, J., concurring) ("Money is property; it is not speech.").
5. This phrase was coined by Professor Richard Briffault during a panel discussion on Citizens United. Richard Briffault, Joseph P. Chamberlain Professor of Legislation, Columbia Law Sch., Panel Discussion at the Brennan Center for Justice Symposium on Money, Politics & the Constitu-tion: Should We Look Beyond the First Amendment to Other Constitutional Principles? (Mar. 27, 2010).
6. See, e.g., FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2671 (2007) (finding no compelling reason to regulate advertisement that was neither express advocacy nor its equivalent
7. Randall v. Sorrell, 548 U.S. 230, 261-62 (2006) (plurality opinion) (finding Vermont's campaign law limiting expenditures and contributions unconstitutional
8. Buckley, 424 U.S. at 57 (stating that "[t]he First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise").
9. 130 S. Ct. 876 (2010).
10. 424 U.S. 1.
11. See FRANK J. SORAUF, INSIDE CAMPAIGN FINANCE 238 (1992) (arguing for the interrela-tion between contribution and expenditure limits in the statutory Federal Election Campaign Act scheme).
12. Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 (codified as amended in scattered sections of 2, 5, 18, 26, and 47 U.S.C.
13. partially invalidated by Buckley, 424 U.S. 1.
14. See Justin A. Nelson, Note, The Supply and Demand of Campaign Finance Reform, 100 COLUM. L. REV. 524, 527-32 (2000) (assessing the market pressures for heightened campaign fundraising).
15. See SAMUEL ISSACHAROFF, PAMELA S. KARLAN & RICHARD H. PILDES, THE LAW OF DEMOCRACY 373 (3d ed. 2007) (providing the stable division on the Court over Buckley
16. J. Robert Abraham, Note, Saving Buckley: Creating a Stable Campaign Finance Framework, 110 CO-LUM. L. REV. 1078, 1091-92 (2010) (stating and citing support for the claim that nearly half the Justices who have served since 1976 have opposed the Buckley framework).
17. Richard L. Hasen, Buckley is Dead, Long Live Buckley: The New Campaign Finance Inco-herence of McConnell v. Federal Election Commission, 153 U. PA. L. REV. 31, 32 (2004).
18. Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 TEX. L. REV. 1705, 1736 (1999) ("A generation has shown us that the expenditure/contribution distinction of Buckley not only is conceptually flawed, but has not worked.").
19. There are many recent doctrinal examples that demonstrate the fragility of the contributions/expenditures divide. See, e.g., Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2257, 2263-65 (2009) (combining con-tributions and independent expenditures to reach the conclusion that the total amount of support provided by an individual to a judicial candidate was enough to create an intolerably high proba-bility of actual bias
20. McConnell v. FEC, 540 U.S. 93, 139 (2003) (upholding limitations on ex-penditures of soft money on the ground that they "limit the source and individual amount of do-nations" and that "prohibiting the spending of soft money does not render them expenditure limitations
21. FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 464 (2001) ("There is no significant functional difference between a party's coordinated expenditure and a direct par-ty contribution to the candidate, and there is good reason to expect that a party's right of unli-mited coordinated spending would attract increased contributions to parties to finance exactly that kind of spending.").
22. See Issacharoff & Karlan, supra note 12, at 1708.
23. See id. at 1715-17.
24. Buckley v. Valeo, 424 U.S. 1, 27-30 (1976) (per curiam).
25. 438 U.S. 265, 314 (1978).
26. See First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 790-92 (1978
27. Buckley, 424 U.S. at 26-28
28. see also McConnell v. FEC, 540 U.S. 93, 121 (2003) (distinguishing "real" and "apparent" quid pro quo corruption).
29. See FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2672 (2007) (plurality opinion
30. McConnell, 540 U.S. at 143-45
31. (discussing the importance of prohibiting the appearance of "undue influ-ence," id. at 144
32. FEC v. Beaumont, 539 U.S. 146, 155 (2003) (noting that the state has an interest in preventing "war-chest corruption
33. Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 659-60 (1990
34. (expressing concern about the corrupting effect of "immense aggregations of wealth that are accumulated with the help of the corporate form," id. at 660
35. see also Bellotti, 435 U.S. at 809 (White, J., dissenting) (arguing that states have an interest in preventing institutions from "using &mellip; wealth to acquire an unfair advantage in the political process
36. United States v. UAW, 352 U.S. 567, 570 (1957) ("No less lively, although slower to evoke federal action, was popular feeling that aggregated capital unduly influenced politics, an influence not stopping short of corruption.").
37. Austin, 494 U.S. at 659.
38. David A. Strauss, Corruption, Equality, and Campaign Finance Reform, 94 COLUM. L. REV. 1369, 1370 (1994).
39. 494 U.S. 652.
40. See id. at 660 ("[T]he unique state-conferred corporate structure that facilitates the amass-ing of large treasuries warrants the limit on independent expenditures.
41. see also FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 447 (2001) (focusing on expenditures by politi-cal parties providing a path to circumvent contribution limits).
42. See OWEN M. FISS, THE IRONY OF FREE SPEECH 4 (1996) (advocating state restriction of speech by some and subsidies of others to equalize access to political discourse
43. David Cole, First Amendment Antitrust: The End of Laissez-Faire in Campaign Finance, 9 YALE L. & POL'Y REV. 236, 237 (1991) (framing Austin as premised on the idea that "[f]ree market capitalism threatens the free marketplace of ideas by giving certain voices inordinate influence
44. Ronald Dworkin, The Curse of American Politics, N.Y. REV. BOOKS, Oct. 17, 1996, at 19, 23 ("[W]hen wealth is unfairly distributed and money dominates politics &mellip; [voters] are not equal in their own ability to command the attention of others for their own candidates, interests, and convictions.").
45. These arguments run into the teeth of Buckley: "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment," 424 U.S. at 48-49.
46. The strongest exponent of this view has been Justice Thomas, whose opinions on campaign finance return consistently to the core prohibitory structure of the First Amendment. See, e.g., Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 410-11 (2000) (Thomas, J., dissenting) ("I begin with a proposition that ought to be unassailable: Political speech is the primary object of First Amendment protection.").
47. The Court's commitment in Reynolds v. Sims that all citizens have an "equally effective voice" in the political process expressed the core of the equality argument. 377 U.S. 533, 565 (1964).
48. The equality rationale appears in campaign finance cases through efforts to dampen the impact of money in general and the arms-race effects of needing to raise money. See, e.g., Buck-ley, 424 U.S. at 260 (White, J., concurring in part and dissenting in part) (justifying expenditure limitations as a legitimate means to "counter the corrosive effects of money in federal election campaigns
49. see also RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW: JUDGING EQUALITY FROM BAKER V. CARR TO BUSH V. GORE 114 (2003) ("Austin represents the first and only case in which a majority of the Court accepted, in deed if not in word, the equality rationale as a permissible state interest.").
50. To this quotation from Hasen's book, Chief Justice Roberts added McConnell as also being premised on the equality rationale. Citizens Unit-ed, 130 S. Ct. at 922 n.2 (Roberts, C.J., concurring
51. see also id. at 922 ("Austin 'has been under-stood by most commentators to be an opinion driven by equality considerations, albeit disguised in the language of "political corruption"' &mellip;
52. (quoting Elizabeth Garrett, New Voices in Poli-tics: Justice Marshall's Jurisprudence on Law and Politics, 52 HOW. L.J. 655, 669 (2009)).
53. Buckley, 424 U.S. at 27.
54. FEC v. Nat'l Conservative PAC, 470 U.S. 480, 498 (1985).
55. 435 U.S. 765 (1978).
56. Id. at 788 n.26.
57. Id. at 790
58. (quoting Kingsley Int'l Pictures Corp. v. Regents of the Univ., 360 U.S. 684, 689 (1959
59. see also Meyer v. Grant, 486 U.S. 414, 425-26 (1988) (rejecting argument of undue influ-ence of money and therefore striking down prohibition of paid signature gatherers for petition drives).
60. Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 659 (1990
61. (quoting FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 257 (1986)).
62. See, e.g., Ronald Dworkin, The Decision that Threatens Democracy, N.Y. REV. BOOKS, May 13, 2010, at 63 (treating Austin as the controlling precedent on limitations on campaign expenditures).
63. 528 U.S. 377 (2000).
64. Id. at 390.
65. 540 U.S. 93 (2003).
66. Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (codified in scattered sections of 2, 18, 28, 36, and 47 U.S.C.).
67. McConnell, 540 U.S. at 143-44. Even this claim was short-lived as Chief Justice Roberts soon noted that corporations could not be barred from nonelectoral speech, regardless of the ad-vantages that might accrue to their corporate structure from the result of a given election.
68. See FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2672-74 (2007) (plurality opinion).
69. Citizens United, 130 S. Ct. at 913 ("[O]verruling Austin 'effectively invalidate[s] not only BCRA Section 203, but also 2 U.S.C. 441b's prohibition on the use of corporate treasury funds for express advocacy.'
70. (quoting Brief for the Appellee at 33 n.12, Citizens United, 130 S. Ct. 876 (No. 08-205), 2009 WL 406774 at &z.ast;33 n.12)).
71. See FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 464 (2001) ("There is no significant functional difference between a party's coordinated expenditure and a direct party contribution to the candidate, and there is good reason to expect that a party's right of unlimited coordinated spending would attract increased contributions to parties to finance exactly that kind of spending.").
72. See Randall v. Sorrell, 548 U.S. 230, 261-62 (2006) (plurality opinion) (striking down Ver-mont state contribution limits).
73. See Citizens United, 130 S. Ct. at 904, 909-10.
74. Id. at 908
75. (quoting Buckley v. Valeo, 424 U.S. 1, 47 (1976) (per curiam)) (internal quotation marks omitted).
76. Id. at 910.
77. Id. at 904
78. (quoting Buckley, 424 U.S. at 48) (internal quotation marks omitted).
79. See id. at 962 (Stevens, J., concurring in part and dissenting in part).
80. Attempts to fashion a "proceduralist" view of the aim of campaign finance regulation antic-ipated this approach. See generally Bruce E. Cain, Moralism and Realism in Campaign Finance Reform, 1995 U. CHI. LEGAL F. 111, 122-39.
81. The Court started to grapple with this problem in McConnell: Just as troubling &mellip; is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder&mellip; . And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means of prevention is to identify and to remove the temptation. McConnell v. FEC, 540 U.S. 93, 153 (2003).
82. See, e.g., Simona Piattoni, Clientelism in Historical and Comparative Perspective, in CLI-ENTELISM, INTERESTS, AND DEMOCRATIC REPRESENTATION 1, 4-7 (Simona Piattoni ed., 2001) (explaining definition of clientelism and its relationship to patronage and corruption
83. Luis Roniger, Political Clientelism, Democracy, and Market Economy, 36 COMP. POL. 353, 353-54 (2004).
84. Alex Weingrod, Patrons, Patronage, and Political Parties, 10 COMP. STUD. SOC'Y & HIST. 377, 379 (1968) (describing related concept of patronage).
85. See Roniger, supra note 48, at 357 (describing clientelism as endemic in democracy).
86. 130 S. Ct. at 910.
87. Roniger, supra note 48, at 358.
88. Cf. Philip Keefer & Razvan Vlaicu, Democracy, Credibility, and Clientelism, 24 J.L. ECON. & ORG. 371, 372-73 (2008) (arguing that politicians may avoid the costs of establishing credibility with the general electorate by instead forming relationships with patrons who are interested only in outcomes that benefit their interest group).
89. Id. at 381
90. see also id. at 381-82, 387.
91. MANCUR OLSON, THE RISE AND DECLINE OF NATIONS 69-71 (1982).
92. For an overview of the earmark process, see Rob Porter & Sam Walsh, Earmarks in the Federal Budget Process 8-9 (Harvard Law Sch. Fed. Budget Policy Seminar, Briefing Paper No. 16, 2006), available at http://www.law.harvard.edu/ faculty/hjackson/Earmarks-16.pdf.
93. THE FEDERALIST NO. 10, at 72 (James Madison) (Clinton Rossiter ed., 2003).
94. The most ambitious effort to read this definition of corruption cross-textually into the Con-stitution is found in Zephyr Teachout, The Anti-Corruption Principle, 94 CORNELL L. REV. 341, 373-81 (2009).
95. The leading effort was signaled in Cass R. Sunstein, Public Values, Private Interests, and the Equal Protection Clause, 1982 SUP. CT. REV. 127, 133-35, which argued for applying different tiers of scrutiny to public- and private-regarding legislation.
96. See Richard B. Stewart, Regulation in a Liberal State: The Role of Non-Commodity Values, 92 YALE L.J. 1537, 1542-43 (1983
97. (noting that "[r]egulation is viewed as a self-serving tool, ma-nipulated either by well-organized economic interest groups to increase their wealth, or by ide-ological factions to impose their partisan values on society," id. at 1543 (footnote omitted)).
98. See Alícia Adserà et al., Are You Being Served? Political Accountability and Quality of Government 35-37 (Inter-Am. Dev. Bank Research Dep't, Working Paper No. 438, 2000).
99. Unfor-tunately, and paradoxically, the competitive uncertainty of elections may also increase pressures to deliver desired goods to any marginal constituency. See J. Moran, Democratic Transitions and Forms of Corruption, 36 CRIME L. & SOC. CHANGE 379, 381 (2001).
100. Roniger, supra note 48, at 367.
101. 130 S. Ct. at 911 (finding the prohibition of corporate independent expenditures both under- and overinclusive if the object is to protect shareholder interests).
102. 129 S. Ct. 2252 (2009).
103. Id. at 2256-57.
104. Supplemental Brief of Amicus Curiae Chamber of Commerce of the United States of America in Support of Appellant at 4, Citizens United, 130 S. Ct. 876 (No. 08-205), 2009 WL 2365220, at &z.ast;4.
105. Twenty-eight states permit some - usually limited - form of corporate campaign contribu-tions. Within this group, five states allow unlimited contributions, with one scheduled to intro-duce limitations effective January 2011. See NAT'L CONFERENCE OF STATE LEGISLATURES, STATE LIMITS ON CONTRIBUTIONS TO CANDIDATES (2010), available at http://www.ncsl.org/Portals/1/documents/ legismgt/limits-candidates.pdf.
106. CAL. FAIR POLITICAL PRACTICES COMM'N, INDEPENDENT EXPENDITURES: THE GIANT GORILLA IN CAMPAIGN FINANCE 22 (2008), available at http://www.fppc.ca.gov/ie/ IEReport2.pdf.
107. Id.
108. Dan Morain, The Big Spenders on the Side, L.A. TIMES, May 21, 2006, at A1.
109. CAL. FAIR POLITICAL PRACTICES COMM'N, supra note 68, at 22.
110. Id.
111. See id. at 24-36.
112. For example, a recent Oregon referendum proposed using increased payroll taxes to finance public employment. Public employee unions raised almost fifty percent more than employer groups to push the measure through. See Brent Walth & Jeff Mapes, Public Workers Flex Mus-cles in Tax Battle, OREGONIAN, Jan. 21, 2010, at A1
113. see also T.W. Farnam, Unions Spending Big on Campaign Ads, WASH. POST, July 7, 2010, at A4.
114. The difficulties encountered by the Target corporation in the recent Minnesota gubernatori-al election provide an object lesson in the perils of political engagement. Target made a $150,000 contribution to a business group supporting the Republican candidate, Tom Emmer, based upon Emmer's endorsement of positions generally helpful to business interests. See Jennifer Martinez & Tom Hamburger, Target Faces Investor Backlash, L.A. TIMES, Aug. 20, 2010, at A1.
115. Target did not factor into its electoral calculus Emmer's strong opposition to gay marriage. See Protect-ing Life and Marriage, EMMER FOR GOVERNOR, http://www.emmerforgovernor.com/issues/ socialvalues (last visited Oct. 2, 2010).
116. The issue of gay marriage proved to have greater electoral salience than Emmer's other positions, and in turn provoked a significant public backlash against Target. Boycotts were organized, anti-Target advertisements were run, and shareholders called for an investigation. See Martinez & Hamburger, supra.
117. Australia provides an example of a country where corporate contributions to campaigns are legal yet prove to be limited. The leading study of company contributions indicated that in the 1995-1998 period, all but one of the top ten campaign contributors donated money to both major political parties. Ian Ramsay, Geof Stapledon & Joel Vernon, Political Donations by Australian Companies, 29 FED. L. REV. 179, 203-04 (2001).
118. Indeed, Professor Ian Ramsay, the author of the most comprehensive study to date on political contributions in Australia, indicated that most cor-porations that do give tend to continue to give to the major parties, with some bump up for whi-chever party is in power. The firms that publicly disclose their contributions report the items on their websites or in their annual reports as "supporting the democratic process" or "strengthening democracy." Interview with Ian Ramsay, Professor of Law and Dir. of the Ctr. for Corporate Law and Sec. Regulation, Melbourne Law Sch., in Melbourne, Austl. (Apr. 22, 2010).
119. There appears to be no evidence of any party in Australia having readier access to large contributions. See Anne Twomey, The Reform of Political Donations, Expenditure and Funding 21 (Sydney Law Sch., Le-gal Studies Research Paper No. 08/136, 2008), available at http://papers.ssrn.com/abstract-id= 1299331.
120. It is difficult to get a precise figure on the amounts spent on lobbying overall, in part be-cause of the complex regulations on what constitutes and does not constitute lobbying. OpenSe-crets estimates that between 2006 and 2008, roughly equal amounts were spent on federal election campaigns and on lobbying the federal government. Compare Big Picture: The Money Behind the Elections, OPENSECRETS.ORG, http://www.opensecrets.org/bigpicture/index.php (last vi-sited Oct. 2, 2010
121. (documenting campaign expenditures), with Lobbying Database, OPENSE-CRETS.ORG, http://www.opensecrets.org/lobby/index.php (last visited Oct. 2, 2010) (providing information on lobbying expenditures).
122. See generally ROBERT B. REICH, SUPERCAPITALISM: THE TRANSFORMATION OF BUSINESS, DEMOCRACY, AND EVERYDAY LIFE 131-67 (2007) (chronicling the growth of lob-bying among firms to secure competitive advantages over one another).
123. See FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986).
124. See FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652 (2007).
125. See, e.g., JAMES SAMPLE ET AL., BRENNAN CTR. FOR JUSTICE, THE NEW POLITICS OF JUDICIAL ELECTIONS 2000-2009: DECADE OF CHANGE (2010), available at http://www.brennancenter.org/content/resource/the-new-politics-of-judicial- elections.
126. Citizens United, 130 S. Ct. at 910.
127. Id. at 909 (noting that Citizens United did not suggest "that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny").
128. In John Doe No. 1 v. Reed, 130 S. Ct. 2811 (2010), the Court further rejected a First Amend-ment facial challenge to disclosure of names on a state petition drive.
129. Id. at 2815.
130. Tillman Act of 1907, Pub. L. No. 59-36, 34 Stat. 864 (1907
131. (codified as amended at 2 U.S.C. § 441b(a) (2006)).
132. Labor-Management Relations (Taft-Hartley) Act, 1947, Pub. L. No. 80-101, 61 Stat. 136
133. (codified as amended at 29 U.S.C. §§ 141-197 (2006)).
134. FEC, THE FEC AND THE FEDERAL CAMPAIGN FINANCE LAW, http://www.fec.gov/ pages/brochures/fecfeca.shtml#Contribution-Limits (last visited Oct. 2, 2010
135. see also 11 C.F.R. § 110.1 (2010).
136. See Saul Zipkin, The Election Period and Regulation of the Democratic Process, 18 WM. & MARY BILL RTS. J. 533, 591 (2010) (suggesting the majority view implies that "because Ameri-cans can think for themselves, more information cannot hurt them, but can only help in the vot-ing process" (footnote omitted)).
137. Citizens United, 130 S. Ct. at 930, 971-72 (Stevens, J., concurring in part and dissenting in part).
138. Id. at 972.
139. Id. at 977.
140. Richard Briffault, Reforming Campaign Finance Reform: A Review of Voting with Dollars, 91 CALIF. L. REV. 643, 645 (2003) (book review).
141. Id. at 679 n.126.
142. The $20 million figure in 1974 was also one-third of what Richard Nixon had spent in 1972 in winning the election. Id. In a more recent example of public campaign funding, John McCain received federal funds of $84 million for the general election cycle in 2008, compared to roughly $400 million raised independently and spent by the victorious Obama cam-paign.
143. Michael Luo, Obama Hauls in Record $750 Million for Campaign, with Plenty Left to Spend, N.Y. TIMES, Dec. 5, 2008, at A29
144. see also FEC Electronic Filings by JOHN MCCAIN 2008 INC., FEC, http://query.nictusa.com/cgi-bin/dcdev/forms/C00430470 (last visited Oct. 2, 2010
145. (posting copies of FEC Form 3P filed periodically between Jan. 31, 2007, and Nov. 5, 2009
146. FEC Electronic Filings by OBAMA FOR AMERICA, FEC, http://query.nictusa. com/cgi-bin/ dcdev/forms/C00431445 (last visited Oct. 2, 2010
147. (posting copies of FEC Form 3P filed periodi-cally between Apr. 15, 2007, and Oct. 17, 2009).
148. See Issacharoff & Karlan, supra note 12, at 1711 (drawing analogy between the remaining unlimited candidate expenditure limits and "giving a starving man unlimited trips to the buffet table but only a thimble-sized spoon with which to eat").
149. 128 S. Ct. 2759, 2773-74 (2008
150. (striking down BCRA § 319(a), 2 U.S.C. § 441a-1(a) (2006)).
151. Id. at 2771.
152. McComish v. Bennett, 130 S. Ct. 3408 (2010) (mem.).
153. See generally Emily C. Schuman, Davis v. Federal Election Commission: Muddying the Clean Money Landscape, 42 LOY. L.A. L. REV. 737 (2009) (setting out basic framework of existing clean money schemes).
154. McComish, 130 S. Ct. 3408
155. see also McComish v. Bennett, 605 F.3d 720 (9th Cir. 2010). This ruling prompted hyperventilated outcries over the Court seeming to put public finance schemes at risk.
156. See Editorial, Keeping Politics Safe for the Rich, N.Y. TIMES, June 9, 2010, at A24 (describing the McComish decision as "reckless" and "a burst of judicial activism").
157. The Ari-zona law included a "matching funds" provision that increased public funds available to a partici-pating candidate to match the financing levels of self-funded candidates, which arguably has the effect of depressing expenditures. ARIZ. REV. STAT. ANN. §§ 16-940 to 16-961 (2006).
158. Invariably there is the paradox that the mainstream media, despite being composed of for-profit corpora-tions, has systematically touted restrictions on any independent expenditures by corporations, oth-er than those deemed to be the media. As Justice Kennedy noted in Citizens United, the claimed "exemption applies to media corporations owned or controlled by corporations that have diverse and substantial investments and participate in endeavors other than news." 130 S. Ct. at 906.
159. Davis, 128 S. Ct. at 2772.
160. Buckley v. Valeo, 424 U.S. 1, 57 n.65 (1976) (per curiam) (affirming that a government may "condition acceptance of public funds on an agreement by the candidate to abide by specified ex-penditure limitations").
161. See, e.g., Daggett v. Comm'n on Governmental Ethics & Election Practices, 205 F.3d 445, 450 (1st Cir. 2000) (holding that constraints on participating candidates in Maine outweighed ef-fects of releasing them from contribution limits if facing privately funded challengers
162. Gable v. Patton, 142 F.3d 940, 943 (6th Cir. 1998) (upholding a Kentucky statute that simply released par-ticipating candidates from expenditure and contribution limits if facing heavily financed challen-ger
163. Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 29 (1st Cir. 1993) (upholding a Rhode Island law that released publicly funded candidates from expenditure and contribution limits if facing overly funded candidate).
164. The portion of the Maine statute that provides for additional funds to a can-didate challenged by a privately funded opponent, ME. REV. STAT. tit. 21-A, §§ 1121, 1125(9) (2009), may now fail under Davis.
165. The same logic would apply to another bill before Congress, the Clean Money, Clean Elections Act of 2009, H.R. 2056, 111th Cong. (2009
166. which would pro-vide "fair fight" funds to candidates who are being outspent, see id. § 510.
167. For example, under one bill currently before Congress, the Fair Elections Now Act, H.R. 1826, 111th Cong. (2009
168. S. 752, 111th Cong. (2009), participating candidates in a federal clean money program would have to agree to accept no contribution greater than $100 per election cycle, even though the current federal limitation on contributions is $2400 per election cycle.
169. The argument that excessive restrictions on candidate fundraising promote politics domi-nated by single-issue special interests is central to the argument in Issacharoff & Karlan, supra note 12.
170. BCRA doubled the amount an individual could contribute to a candidate in each campaign cycle from $1000 to $2000 and raised the amount that could be given to a political party to $25,000. BCRA § 307(a)(1)-(2) (codified at 2 U.S.C. § 441(a)(1) (2006)).
171. Under BCRA, these limits were also indexed to inflation, id. § 441a(c), and as of January 2010 stood at $2400 to a candidate and $30,400 to a national party committee. FEC, supra note 87.
172. Presidential Fundraising and Spending, 1976-2008, OPENSECRETS.ORG, http://www.open secrets.org/pres08/totals.php?cycle=2008 (last visited Oct. 2, 2010
173. Summary Data for Barack Ob-ama, OPENSECRETS.ORG, http://www.opensecrets. org/pres08/summary.php?cycle=2008&cid=N0 0009638 (last visited Oct. 2, 2010). The historical figures are not adjusted for inflation.
174. Tahman Bradley, Final Fundraising Figure: Obama's $750M, ABC NEWS (Dec. 5, 2008), http://abcnews.go.com/Politics/Vote2008/story?id=6397572.
175. Obama received a greater percentage of donations from small contributors than did pre-vious major party candidates for President. For a comparison of percentages of contributions from small donors, see Press Release, Campaign Fin. Inst., All CFI Funding Statistics Revised and Updated for the 2008 Presidential Primary and General Election Candidates (Jan. 8, 2010), http://www.cfinst.org/ Press/PReleases/10-01-08/Revised-and-Updated-2008-Presidential-Statis tics.aspx.
176. While the percentage difference was marginal, given the significantly greater amount of total money raised by Obama, see supra note 106 and accompanying text, the raw number of con-tributions Obama received from small donors was also significantly greater than the number of such contributions past major-party nominees had received.
177. See Press Release, Campaign Fin. Inst., supra note 108.
178. See ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 145 (1956) (identifying the "'normal' American political process" in terms of "a high probability that an active and legi-timate group in the population can make itself heard effectively at some crucial stage in the process of decision
179. JOHN HART ELY, DEMOCRACY AND DISTRUST 135 (1980) (similarly describing the assurances of the democratic process as allowing "any group whose members were not denied the franchise [to] protect itself by entering into the give and take of the political marketplace").
180. Harry H. Wellington & Ralph K. Winter, Jr., The Limits of Collective Bargaining in Public Employment, 78 YALE L.J. 1107, 1116, 1124-25 (1969).
181. Winter, now a federal judge, made a sig-nificant reappearance in this area of law as counsel to petitioner Buckley in Buckley v. Valeo. 424 U.S. 1, 5 (1976) (per curiam).
182. Wellington & Winter, supra note 111, at 1123.
183. Id. at 1121.
184. Hatch Act Amendments of 1940, Pub. L. No. 76-753, ch. 640, sec. 19, § 5(a), 54 Stat. 767, 772 (repealed 1976).
185. Tillman Act of 1907, 2 U.S.C. § 441b(a) (2006).
186. Pub. L. No. 59-36, 34 Stat. 864 (1907).
187. See FEC v. Beaumont, 539 U.S. 146, 149 (2003) (upholding the constitutionality of the Tillman Act, even as applied to not-for-profit corporations).
188. A variant on this argument, put forward in the early post-Buckley debates, posited that the incentives for incumbents to use the powers of government to create loyalties among potential donors violated the equal protection rights of challengers and their campaign supporters. Peter M. Manikas, Campaign Finance, Public Contracts and Equal Protection, 59 CHI.-KENT L. REV. 817, 819 (1983).
189. U.S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 548 (1973
190. United Pub. Workers v. Mitchell, 330 U.S. 75, 76 (1947
191. see also FEC v. Weinsten, 462 F. Supp. 243, 249 & n.8 (S.D.N.Y. 1978) (upholding prohibition on contractor contributions against constitutional challenge by corporate contractor).
192. Pub. L. No. 92-225, 86 Stat. 3 (1972) (codified as amended in scattered sections of 2, 18, and 47 U.S.C.).
193. Pub. L. No. 94-283, § 322(b), 90 Stat. 475, 493
194. (codified as amended at 2 U.S.C. § 441c(b) (2006
195. (repealing Hatch Act Amendments of 1940, Pub. L. No. 76-753, ch. 640, sec. 19, § 5(a), 54 Stat. 767, 772).
196. 2 U.S.C. § 441c(a)(1) (2006).
197. Id. § 441c(a)(2).
198. On the record presented, Citizens United sweepingly condemned any attempt to limit inde-pendent expenditures, at least so long as premised on the theory of quid pro quo corruption: "in-dependent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." 130 S. Ct. at 909.
199. See id. at 904
200. id. at 923-24 (Roberts, C.J., concurring).
201. Id. at 911 (majority opinion
202. cf. id. at 924 (Roberts, C.J., concurring).
203. First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 823-24 (1978) (Rehnquist, J., dissenting) ("[Corporations are created] only for the limited purposes described in their charters and regulated by state law&mellip; . [T]he mere creation of a corporation does not invest it with all the liberties en-joyed by natural persons &mellip; ." (footnote omitted) (citation omitted)). Though the Court does not address it on its terms, Justice Rehnquist's position contrasts with the Court's more categorical assertion that "First Amendment protection extends to corporations
204. Citizens United, 130 S. Ct. at 899 (citations omitted).
205. Citizens United, 130 S. Ct. at 904 (emphasis added
206. (quoting Buckley v. Valeo, 424 U.S. 1, 48 (1976) (per curiam)) (internal quotation mark omitted).
207. Id. at 910.
208. For a new effort by the SEC to combat similar pay-to-play concerns in the regulation of the financial services industry, see Political Contributions by Certain Investment Advisers, 75 Fed. Reg. 41,069 (July 14, 2010) (to be codified at 17 C.F.R. § 275.206(4)-(5)).