Citizens United, States divided: An empirical analysis of independent political spending

Indiana Law Journal

Volumn 89, Issue 1, 2014, Pages 315-372

  Spencer, Douglas M ^a   Wood, Abby K ^b  

^a UNIVERSITY OF CONNECTICUT   (United States)

^b UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

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EID: 84893950315     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (155)

1. Independent spending includes electioneering communications, independent expenditures, and other noncandidate and nonparty communications. See Ctr. for Responsive Politics, Total Outside Spending by Election Cycle, Excluding Party Committees, OPENSECRETS.ORG, http://www.opensecrets.org/outsidespending/cycle- tots.php.
2. Compare, e.g., Fred Wertheimer, Supreme Court Decision in Citizens United Case is Disaster for American People and Dark Day for the Court, ACSBLOG (Jan. 21, 2010), http://www.acslaw.org/acsblog/node/15151
3. ("The decision will unleash unprecedented amounts of corporate 'influence-seeking' money on our elections and create unprecedented opportunities for corporate 'influence-buying' corruption."), with Bradley A. Smith, 'Pure Science Fiction,' USA TODAY, Jan. 22, 2010, at 8A
4. ("[T]he various 'doomsday' scenarios being floated by critics of the decision, claiming that corporations will dominate American politics with billions of dollars in expenditures, are pure science fiction."). Other critical responses include Rick Hasen, Citizens United: What Happens Next?, HUFFINGTON POST (Jan. 21, 2010, 1:53 PM), http://www.huffingtonpost.com/rick- hasen/icitizens-unitedi-what-ha-b-431696.html
5. (lamenting the Supreme Court's decision as "a very bad day for American democracy" and describing how none of the four most feasible legislative responses or a proposed constitutional amendment are likely to make any difference); Bob Kerrey, The Senator from Exxon-Mobil?, HUFFINGTON POST (Jan. 21, 2010, 10:38 AM), http://www.huffingtonpost.com/bob-kerrey/the-senator- from-exxon-mo-b-431245.html
6. ("With $85 billion in profits during the 2008 election, Exxon Mobil would have been able to fully fund over 65,000 winning campaigns for U.S. House or outspend every candidate by a factor of 90 to 1. That's a scary proposition when you consider that the health of our planet is at stake."). Examples of arguments that Citizens United warrants no concern include Kenneth P. Doyle, Ban on Corporate, Union Campaign Money Swept Aside by 5-4 Supreme Court Decision, BLOOMBERG BNA MONEY & POLITICS REPORT, Jan. 21, 2010,
7. (describing arguments on both sides and quoting Joseph Sandler that "the impact of the Supreme Court ruling would be 'more marginal than cataclysmic' to the current campaign finance system"); Ilya Shapiro, Supreme Court Ruling on Hillary Movie Heralds Freer Speech for All of Us, CATO AT LIBERTY BLOG (Jan. 21, 2010, 9:29 AM), http://www.cato-at-liberty.org/ supreme-court-ruling-on-hillary-movie-heralds-freer-speech-for-all-of-us/ ("Today's ruling may well lead to more corporate and union election spending, but none of this money will go directly to candidates - so there is no possible corruption or even 'appearance of corruption.' It will go instead to spreading information about candidates and issues. Such increases in spending should be welcome because studies have shown that more spending-more political communication-leads to better-informed voters.").
8. Citizens United V. FEC, 130 S. Ct. 876, 909 (2010) ("[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.").
9. Verified Complaint for Declaratory and Injunctive Relief at 8, Citizens United V. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008) (No. 07-2240).
10. Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81.
11. See McConnell V. FEC, 540 U.S. 93, 189-94 (2003).
12. Citizens United reported that it collected $1 million for the production and distribution of the film. Brief for Appellant at 7, 33, Citizens United V. FEC, 130 S. Ct. 876, (2010) (No. 08-205).
13. Among its donors, Citizens United only refers to its "large donors," or those that gave at least $ 1000 aggregate to Citizens United. See Id. It is possible the amount of corporate money backing the film was higher, contributed in small amounts (less than $1000) by many corporations, though Citizens United only references the $2000 figure in its briefs. See Id. By accepting corporate contributions, Citizens United was not eligible for a "qualified nonprofit" exemption that the Court recognized in FEC V. Mass. Citizens for Life, Inc. (MCFL), 479 U.S. 238 (1986).
14. In order to qualify as an "MCFL corporation," and thus be exempt from regulation by the FEC, a nonprofit must (1) "[be] formed for the express purpose of promoting political ideas, and cannot engage in business activities" Id. at 264; (2) "ha[ve] no shareholders or other persons affiliated so as to have a claim on its assets or earnings," Id.; and (3) not be "established by a business corporation or a labor union" or "accept contributions from such entities," Id. The Court's reasoning for exempting MCFL organizations is that they pose no risk for corrupting the political process: "MCFL was formed to disseminate political ideas, not to amass capital. The resources it has available are not a function of its success in the economic marketplace, but its popularity in the political marketplace." Id. at 259; see also 11 C.F.R. § 114.10(a) (2012) ("set[ting] out the procedures for demonstrating qualified nonprofit corporation status, for reporting independent expenditures and electioneering communications, and for disclosing the potential use of donations for political purposes."). In his Citizens United dissent, Justice Stevens argued that one possible (and narrower) solution to the case would have been "expand[ing] the MCFL exemption to cover § 501(c)(4) nonprofits that accept only a de minimis amount of money from for-profit corporations. Citizens United professes to be such a group..." Citizens United, 130 S. Ct. at 937 (Stevens, J., dissenting).
15. McConnell V. FEC, 540 U.S. 93, 201-02 (2003).
16. Wis. Right to Life, Inc. V. FEC, 546 U.S. 410, 411-12 (2006) (per curiam) ("In upholding § 203 against a facial challenge [in McConnell], we did not purport to resolve future as-applied challenges.").
17. In 2004, Citizens United formally submitted comments to the FEC in response to proposed changes to the definition of "expenditure," strongly opposing "any changes to the Commission's rules that would broaden the definition[] of 'expenditure'... to encompass activities that fall short of the express advocacy of the election or defeat of clearly identified Federal candidates." Comments of Citizens United Regarding Proposed Changes to the Definitions of "Expenditure," "Contribution" and "Political Committee," FEC Notice 2004-6, at 4 (Apr. 5, 2004), http://www.fec.gov/pdf/nprm/political-comm-status/boss.pdf.
18. Second Motion for Preliminary Injunction at 1, Citizens United, 530 F. Supp. 2d 274 (D.D.C. 2007) (No. 07-2240).
19. The national conglomerate, National Cable Communications (NCC) Media, is an advertising and marketing agency that develops media plans for clients that want to advertise on television, cable, satellite, and online. The agency is "jointly owned by three of the nation's largest cable system operators-Comcast, Cox Communications and Time Warner Cable-and represents] virtually every other TV service provider in the country." Owners & Affiliates, NCC MEDIA, http://nccmedia.com/about/owners-affiliates.
20. See Amended Verified Complaint for Declaratory and Injunctive Relief, Citizens United, 530 F. Supp. 2d 274 (No. 07-2240-RCL). Citizens United's legal strategy was almost entirely focused on WRTL II. Consider that WRTL II was invoked 134 times in Citizens United's original thirty-eight-page motion for preliminary injunction (on average 3.5 times per page), and sixty-six times in the sixteen-page amendment (on average 4.1 times per page).
21. In its first eight months, the Elections '08 on-demand channel on which Hillary: The Movie would have aired, just 500,000 segments split between all of the available programs and ads had been viewed. Stephanie Clifford, Cable, Quietly, Introduces an Anytime Elections Channel, N.Y. TIMES, Aug. 29, 2008, at C7. With more than eleven available ads and films on the Elections '08 station, each would have been viewed (on average) by less than 50,000 people, thus falling short of the statutory requirement for definition as an electioneering communication. As reported in the New York Times, "[n]either traffic nor advertising on the election channel has been particularly strong." Id. Citizens United offered a similar yet different explanation for why VOD failed to meet the statutory definition of electioneering communication: Because, unlike a broadcast, [VOD] is sent only to the requesting converter box (as opposed to a geographic area), a Video On Demand transmission will generally be viewed only by the members of the household who requested the Video On Demand program. Unless the recipient converter box is located in a sold-out football stadium, the transmission will not be able to be viewed by 50,000 people. Brief for Appellant, supra note 20, at 27 n.2.
22. See Citizens United, 530 F. Supp. 2d at 280-81.
23. Citizens United V. FEC, 128 S. Ct. 1732 (2008) (mem). BCRA section 403(a)(3) states that a "final decision in the action shall be reviewable only by appeal directly to the Supreme Court of the United States." 2 U.S.C. § 437h (2006). The denial of a motion for preliminary injunction was not considered a final decision for purposes of appeal.
24. See Plaintiffs Summary Judgment Motion, Citizens United, 530 F. Supp. 2d 274 (No. 07-2240)
25. Defendant Federal Election Commission's Motion for Summary Judgment, Citizens United, 530 F. Supp. 2d 274 (No. 07-2240).
26. Citizens United V. FEC, No. 07-2240 (ARR, RCL, RWR), 2008 WL 2788753 (Jul. 18, 2008).
27. In each of his briefs, the original lead attorney James Bopp had framed his arguments around the idea that "campaign finance laws may only regulate communications that are 'unambiguously related to the campaign of a particular federal candidate.'" Memorandum in Support of Plaintiff s Summary Judgment Motion at 1, Citizens United, 530 F. Supp. 2d 274 (No. 07-2240)
28. (quoting Buckley V. Valeo, 424 U.S. 1, 80 (1976)).
29. In his briefs for WRTL II a few years earlier, Bopp had rhetorically set the stakes as high as possible by introducing his argument with the following statement: The deep roots of this case lie not in the Bipartisan Campaign Reform Act of 2002, the Federal Election Campaign Act of 1971, the Taft-Hartley Act of 1947, the Tillman Act of 1907, nor even the First Amendment, but in the struggle of the Anglo-American people to (a) establish themselves as sovereign and (b) curb the power of government officials to prevent the people from criticizing official actions. Brief for Appellee at 1, WRTL II, 551 U.S. 449 (2007) (Nos. 06-969 & 06-970).
30. Brief for the Appellee at 33, Citizens United V. FEC, 130 S. Ct. 876 (2010) (No. 08-205) (citation omitted).
31. Oral Argument at 29:03-30:05, Citizens United, 130 S. Ct. 876 (No. 08-205), available at http://www.oyez.org/cases/2000-2009/2008/2008-08-205.
32. Transcript of Oral Argument at 27-30, Citizens United, 130 S. Ct. 876 (No. 08-205).
33. Between 1946 and 2010, the Supreme Court called for reargument in just 2.3% of its cases (172 of 8330). See Harold Spaeth, Lee Epstein, Ted Ruger, Jeffrey Segal, Andrew D. Martin & Sara Benesh, SUP. CT. DATABASE, http://scdb.wustl.edu/index.php
34. (we tabulated the number of cases in the subset of "Cases Organized by Supreme Court Citation" with an entry in the vector " dateRearg"). Despite this low number, many of the Supreme Court's most famous cases, including Brown V. Board of Education, 347 U.S. 483 (1954),
35. Roe V. Wade, 410 U.S. 113 (1973),
36. were decided after postponements for reargument. See Valerie Hoekstra & Timothy Johnson, Delaying Justice: The Supreme Court's Decision to Hear Rearguments, 56 POL. RES. Q. 351, 351 (2003).
37. Citizens United V. FEC, 129 S. Ct. 2893 (2009) (mem.) (citations omitted).
38. See Supplemental Brief for the Appellee, Citizens United, 130 S. Ct. 876 (No. 08-205).
39. See Supplemental Brief for Appellant, Citizens United, 130 S. Ct. 876 (No. 08-205).
40. See Richard L. Hasen, Citizens United and the Illusion of Coherence, 109 MICH. L. REV. 581, 582 (2011). Hasen points to Chief Justice Robert's opinion that portrays Citizens United as a doctrinally unifying opinion, restoring coherence to campaign finance law by invalidating the "outlier" Austin case. Id. at 583. Hasen argues that the decision merely created an illusion of coherence "because it is unlikely that the Court will follow [Citizens United] to its extreme - for example to allow spending by foreign nationals to influence candidate elections, to treat spending injudicial elections the same way as spending for other races, or to strike down reasonable limits on campaign contributions made directly to candidates." Id. at 585.
41. Transcript of Rehearing Oral Argument at 34, Citizens United, 130 S. Ct. 876 (No. 08-205).
42. See Citizens United, 130 S. Ct. at 937 (Stevens, J., dissenting) ("First, the Court could have ruled, on statutory grounds, that a feature-length film distributed through video-on-demand does not qualify as an 'electioneering communication' under § 203 of BCRA... Second, the Court could have expanded the MCFL exemption to cover § 501(c)(4) nonprofits that accept only a de minimis amount of money from for-profit corporations... Finally, let us not forget Citizens United's as-applied constitutional challenge.").
43. Citizens United, 130 S. Ct. at 917.
44. Austin V. Mich. State Chamber of Commerce, 494 U.S. 652, 656 (1990).
45. Before Austin, the Court had explicitly upheld the corporate ban on independent expenditures (i.e., electioneering that expressly advocates the election or defeat of a candidate) in 2 U.S.C. §441(b) in Buckley V. Valeo, 424 U.S. 1, 28-29 (1976).
46. In addition, the Court had implicitly upheld the corporate ban in several other cases. E.g., WRTL II, 551 U.S. 449 (2007)
47. McConnell V. FEC, 540 U.S. 93 (2003)
48. MCFL, 479 U.S. 238 (1986).
49. Citizens United, 130 S. Ct. at 913-14. Citizens United's complaint against section 203 (and later section 441b) concerned corporate funding directly and not unions. However, both section 203 more narrowly and section 441(b) more generally applied equally to corporations and unions. Because the Court did not distinguish corporations from unions but ruled the entirety of section 441(b) as unconstitutional, the holding applies to unions as well.
50. Obama, supra note 7, at H418. This statement elicited one of the great Freudian slips of all time in Congress. No sooner had President Obama finished his sentence that the Supreme Court had "open[ed] the floodgates for special interests... to spend without limit in our elections" than Congress began applauding and audibly cheering. Justice Alito was caught on camera during this applause muttering "simply not true." For video of the exchange, see CBS Evening News with Katie Couric: Alito: 'Simply Not True,' (CBS television broadcast Jan. 28, 2010), available at http://www.cbsnews.com/video/ watch/?id=6154907n.
51. Jennifer Agiesta, Campaign Finance Ruling Sparks Bipartisan Agreement, WASH. POST POL. BLOG (Feb. 17, 2010, 11:12 AM), http://www.washingtonpost.com/ blogs/behind-the-numbers/post/campaign-finance-ruling-sparks-bipartisan- agreement/2010/12/20/ABslgvF-blog.html.
52. PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, SUPER PACs HAVING NEGATIVE IMPACT, SAY VOTERS AWARE OF 'CITIZENS UNITED' RULING 1 (2012), available at http://www.people-press.org/files/legacy-pdf71-17- 12%20Campaign%20Finance.pdf.
53. Two months after Citizens United, the D.C. Court of Appeals invalidated various limits on individual contributions to independent expenditure groups, citing Citizens United, which, in the words of the court, "resolves this appeal" because "after Citizens United, independent expenditures do not implicate [quid pro quo corruption]." Speech Now.org V. FEC, 599 F.3d 686, 689, 693 n.3 (D.C. Cir. 2010).
54. The five candidates (and the Super PAC they endorsed) are: Mitt Romney (Restore Our Future), Barack Obama (Priorities USA Action), Newt Gingrich (Winning Our Future), Rick Perry (Make Us Great Again), and Jon Hunstman (Our Destiny PAC). See Ctr. for Responsive Politics, 2012 Outside Spending, by Super PAC, OPENSECRETS.ORG, http://www.opensecrets.org/outsidespending/summ.php?cycle= 2012&chrt=V&disp=0&type=S.
55. See, e.g., Kenneth P. Vogel, Debate Shows Super PACs' Strength, POLITICO (Jan. 8, 2012, 9:22 PM), http://www.politico.com/news/stories/0112/71217.html (reporting that Mitt Romney admitted, with regards to the staff of his Super PAC, '"of course they're former staff of mine' and 'people who support me'").
56. This metaphor originated from an unnamed GOP operative who predicted that "'everybody will have [a Super PAC]-there will be a sidecar for every motorcycle.'" Melanie Mason, Jon Huntsman Latest Hopeful to Be Backed by 'Super PAC,' L.A. TIMES (Aug. 30, 2011), http://articles.latimes.com/2011/aug/ 30/news/la-pn-huntsman-super-pac-20110830 (alteration in orginal).
57. According to an analysis of Super PAC filings by USA Today, "less than $1 out of every $5 flowing into super PACs' coffers came from corporations." Fredreka Schouten, Christopher Schnaars & Gregory Korte, Individuals, Not Corporations, Drive Super PAC Financing; But Critics Say Donors' Goal to Buy Influence Is the Same, USA TODAY, Feb. 2, 2012, at A7.
58. For an in-depth overview of Super PACs, including their use and possible abuse, see generally Richard Briffault, Super PACs, 96 MINN. L. REV. 1644 (2012).
59. Spencer MacColl, Citizens United Decision Profoundly Affects Political Landscape, OPENSECRETS.ORG (May 5, 2011, 11:16 AM), http://www.opensecrets.org/ news/2011/05/citizens-united-decision-profoundly-affects-political-landscape. html.
60. Exemption Requirements-Section 501(c)(3) Organizations, IRS.GOV, http://www.irs.gov/Charities-&-Non-Profits/Charitable-Organizations/ Exemption-Requirements-Section-501(c)(3)-Organizations (last reviewed or updated Sept. 3, 2013). In other words, when a donor gives to a 501(c), over half of that money cannot be used to support political activity.
61. See, e.g., MATTHEW JOSEPHSON, THE ROBBER BARONS: THE GREAT AMERICAN CAPITALISTS, 1861-1901, at 347-74 (1934)
62. Larry Howell, Once Upon a Time in the West: Citizens United, Caperton, and the War of the Copper Kings, 73 MONT. L. REV. 25 (2012)
63. William P. Marshall, The Constitutionality of Campaign Finance Regulation: Should Differences in a State's Political History and Culture Matter?, 74 MONT. L. REV. 79, 81 (2013).
64. 34 Stat. 864 (1907), 18 U.S.C. § 610. The federal ban on direct contributions by corporations was most recently validated by the Supreme Court in FEC V. Beaumont, 539 U.S. 146 (2003).
65. Several circuits have addressed the viability of corporate contribution bans since Citizens United and all have ruled that Beaumont is the controlling authority for the regulation of direct contributions to candidates. The Second Circuit upheld New York's "pay-to-play" contribution limits. Ognibene V. Parkes, 671 F.3d 174, 193-94 (2d Cir. 2011)
66. ("[The pay-to-play scheme] is similar to a [contribution] limit and subject to the less stringent standard of review... [and] is closely drawn to address a sufficiently important governmental interest."). The Fourth Circuit overturned a lower court ruling that Citizens United rendered Beaumont moot. United States V. Danielczyk, 683 F.3d 611, 615 (4th Cir. 2012)
67. ("Citizens United, a case that addresses corporate independent expenditures, does not undermine Beaumont's reasoning."). The Eighth Circuit unanimously upheld a state ban on direct contributions by corporations in Minnesota and specifically distinguished Citizens United by arguing that Beaumont is the controlling authority for the regulation of direct contributions to candidates. Minn. Citizens Concerned for Life, Inc. V. Swanson, 692 F.3d 864, 879 (8th Cir. 2012)
68. ("In light of Beaumont, the district court did not abuse its discretion in denying the preliminary injunction."). The Ninth Circuit also relied on Beaumont to uphold a city-level ban on corporate contributions in the same year. Thalheimer V. City of San Diego, 645 F.3d 1109, 1124-26 (9th Cir. 2011) (describing three ways that Citizens United is distinct from Beaumont).
69. See 1966 Amendments to the Foreign Agents Registration Act of 1938, Pub. L. No. 89-486, 80 Stat 244 (codified as amended at 22 U.S.C. §§ 611-618 (2006)).
70. For a short history and discussion of the prohibition on foreign nationals (defined as individuals without "green cards," individuals with foreign citizenship, foreign corporations, foreign governments, or foreign political parties), see Foreign Nationals, FEC.GOV (2003), http://www.fec.gov/ pages/brochures/foreign.shtml.
71. Note this section draws heavily from Anthony Corrado, Money and Politics: A History of Federal Campaign Finance Law, in THE NEW CAMPAIGN FINANCE SOURCEBOOK 7, 16-20 (Anthony Corrado et al. eds., 2005).
72. Id. § 304; see also Note, Section 304, Taft-Hartley Act: Validity of Restrictions on Union Political Activity, 57 Yale L.J. 806, 810 (1948) ("Second, Congress has supplemented its ban on 'contributions' by adding the crucial term 'expenditures.'").
73. The clearest articulation of the Court's respect for preventing corruption or the appearance of corruption is Buckley V. Valeo, 424 U.S. 1, 30 (1976) ("Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated."); Id. at 33 ("Since the danger of corruption and the appearance of corruption apply with equal force to challengers and to incumbents, Congress had ample justification for imposing the same fundraising constraints upon both.").
74. See, e.g., Id. at 46 ("[T]he independent advocacy restricted by the [FECA] does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions."); see also Citizens United V. FEC, 130 S. Ct. 876, 910 (2010)
75. (noting that a lack of examples where votes were exchanged for expenditures "confirms Buckley's reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption"). The Citizens United Court continued, "[f]n fact, there is only scant evidence that independent expenditures even ingratiate," and "[i]ngratiation and access, in any event, are not corruption." Finally, see SpeechNow.org V. FEC, 599 F.3d 686 (D.C. Cir. 2010),
76. where the D.C. Circuit extended the holding of Citizens United to the case of individual contributions to independent expenditure-only groups by writing that the only interest we may evaluate to determine whether the government can justify contribution limits [to PACs] as applied to SpeechNow is the government's anticorruption interest. Because of the Supreme Court's recent decision in Citizens United V. FEC,
77. the analysis is straightforward. There, the Court held that the government has no anti-corruption interest in limiting independent expenditures. Id. at 692-93 (emphasis in original). Therefore, "contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption." Id. at 694. Not all observers agree with the Court. See, e.g., Michael S. Kang, After Citizens United, 44 IND. L. REV. 243, 244 (2010) (calling this distinction "the greatest absurdity of campaign finance law - that independent expenditures pose no threat of campaign finance corruption.").
78. See Citizens United, 130 S. Ct at 910.
79. For a broad discussion of laws as transactions costs, see generally IAN AYRES & JOHN BRATTHWARRE, RESPONSIVE REGULATION: TRANSCENDING THE DEREGULATION DEBATE (1992)
80. JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT (1962)
81. JAMES M. BUCHANAN & ROGER D. CONGLETON, POLITICS BY PRINCIPLE, NOT INTEREST (1998).
82. Cast as a public choice problem, all of the actors in the campaign finance ecosystem-incumbents, candidates, lobbyists, bundlers, donors, supporters, and regulators-simultaneously pursue their own self-interest. See generally DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION (1991)
83. RESEARCH HANDBOOK ON PUBLIC CHOICE AND PUBLIC LAW (Daniel A. Farber & Anne Joseph O'Connell eds., 2010).
84. This hypothesized premise led John Samples to argue against campaign finance "reform," which he writes is code for "incumbency protection" inasmuch as no incumbent would vote for reform unless it benefited him or her. See JOHN C. SAMPLES, THE FALLACY OF CAMPAIGN FINANCE REFORM 233-54 (2006).
85. Some scholars, expanding on the water metaphor of floodgates, have called this the hydraulic theory. See, e.g., Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 TEX. L. REV. 1705 (1999)
86. Raymond J. La Raja, Will Citizens United V. FEC Give More Political Power to Corporations? (Sept. 2010) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=162175 (paper presented at the 2010 annual meeting of the American Political Science Association). According to this theory, targeted laws, such as a ban on independent expenditures, are analogous to large mallets in a carnival game of whack-a-mole. While the law may have a marginal effect on its target, this effect will be offset by increased spending elsewhere as money flows into campaigns one way or another. Id. at 9-10. As an example, a ban on direct contributions may lead to increased independent expenditures. Or a law that bans spending by corporations from their general treasuries may lead to increased spending by corporations via PACs, or earmarked (and anonymous) contributions to other nonprofit organizations.
87. At a minimum, a federal-only analysis is threatened by history and maturation effects. See Donald T. Campbell, Legal Reforms As Experiments, 23 J. LEGAL. EDUC. 217, 220(1970).
88. See Citizens United V. FEC, 130 S. Ct. 876, 933 (2010) (Stevens, J., concurring in part and dissenting in part) ("The Court operates with a sledge hammer rather than a scalpel... [and] compounds the offense by implicitly striking down a great many state laws as well.").
89. See Mich. Dep't of State, Independent Expenditures by Corporations, Unions and Domestic Dependent Sovereigns U.S. Supreme Court Decision Issued January 21, 2010 Citizens United V. Federal Elections Commission, MICHIGAN.GOV, http://www.michigan.gov/sos/0,1607,7-127-1633-8723-15274-230880-,00.html.
90. North Carolina submitted three separate petitions for preclearance: 2010-3057, 2010-3059, and 2010-3090. See U.S. Dep't of Justice, Notice of Preclearance Activity: The Voting Rights Act of 1965, as Amended, JUSTICE.GOV (Aug. 9, 2010), http://www.justice.gov/crt/about/vot/notices/vnote080910.php.
91. The three preclearance submissions were approved on April 5, 2011. In Shelby County, Alabama V. Holder, 133 S. Ct. 2612 (2013), the Supreme Court invalidated section 4 of the Voting Rights Act, which had subjected North Carolina to preclearance under section 5. Because the Department of Justice approved North Carolina's campaign finance reform in 2010, Shelby County has no effect on these reforms. However, future reforms need not be precleared by the federal government.
92. See Brief of the States of Montana, Arizona, Connecticut, Florida, Hawaii, Illinois, Iowa, Kansas, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Vermont, West Virginia, as Amici Curiae Addressing June 29, 2009 Order for Supplemental Briefing and Supporting Neither Party, Citizens United, 130 S. Ct. 876 (No. 08-205).
93. See Corporate America vs. the Voter: Examining the Supreme Court's Decision to Allow Unlimited Corporate Spending in Elections Before the S. Comm. on Rules & Admin., 111th Cong. 2 (2012), available at http://www.rules. senate.gov/public/index.cfm?a=Files.Serve&File-id=60a8bdb2-9112-47c9-a9d1- 4be283039acl (statement of Steve Bullock, Att'y Gen. of Montana).
94. See W. Tradition P'ship, Inc. V. Att'y Gen., No. BDV-2010-238, 2010 WL 4257195 (Mont Dist. Ct. Oct. 18, 2010) (order on cross-motions for summary judgment).
95. See Minn. Chamber of Commerce V. Gaertner, 710 F. Supp. 2d 868 (D. Minn. 2010).
96. The federal district court did not wait for the state legislature to act in ruling the law unconstitutional, even though the legislature was in conference on a repeal that it had debated for three months. The legislature ultimately passed Senate File 2471 one week after the district court opinion (though without reference to the opinion). See S.F. 2471, 86th Leg., Reg. Sess. (Minn. 2010)
97. see also SF 2471 Status in the Senate for the 86th Legislature (2009-2010), MINN. ST. LEGISLATURE, https://www.revisor.mn.gov/bills/bill.php?b= Senate&f=SF2471&ssn=0&y=2010.
98. W. Tradition P'ship, Inc. V. Att'y Gen., 2011 MT 328, ¶ 10, 363 Mont. 220, 271 P.3d 1,
99. rev'dsub nom. Am. Tradition P'ship, Inc. V. Bullock, 132 S. Ct. 2490 (2012) (per curiam).
100. Id. ¶¶ 111-17. Note that the U.S. Supreme Court had also worried about the negative effects of corporate money in judicial elections. Id.; see also Caperton V. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009).
101. Am. Tradition P'ship V. Bullock, 132 S. Ct. 2490 (2012) (per curiam).
102. The National Institute on Money in State Politics is a nonpartisan, nonprofit organization in Helena, Montana, that maintains a "comprehensive and verifiable" database of political spending in all fifty states, freely available to the public. Nat'l Inst, on Money in State Politics, Mission & History, FOLLOWTHEMONEY.ORG, http://followthemoney.org/Institute/index.phtml.
103. See First Nat'l Bank of Boston V. Bellotti, 435 U.S. 765, 790-91 (1978).
104. We build upon W. DEAN BURNHAM, PARTISAN DIVISION OF AMERICAN STATE GOVERNMENTS, 1834-1985 (ISCPR 00016) (1984), http://doi.org/10.3886/ICPSR00016. v1.
105. Burnham's study was updated in Stephen Ansolabehere, John Mark Hansen, Shigeo Hirano & James M. Snyder, Jr., More Democracy: The Direct Primary and Competition in U.S. Elections, 24 STUD. AM. POL. DEV. 190 (2010),
106. Ernesto Dal Bó, Pedro Dal Bó & Jason Snyder, Political Dynasties, 76 REV. ECON. STUD. 115 (2009), and now by ourselves.
107. The average population between 2006 and 2010 was 82, 343, 434 in treated states and 64, 518, 787 in control states. See U.S. Census Bureau, Population Estimates, CENSUS.GOV, http://www.census.gov/popest/data/historical/index.html (last revised Dec. 20, 2012).
108. See, e.g., Matt Bai, How Much Has Citizens United Changed the Political Game?, N.Y. TIMES MAG., (July 17, 2012), http://www.nytimes.com/2012/07/22/ magazine/how-much-has-citizens-united-changed-the-political-game.html? pagewanted=all (explaining that while, as of the time of the article, corporate independent expenditures had not skyrocketed in the wake of Citizens United, outside spending driven by "the fury and anxiety of out-of-power millionaires" since BCRA had indeed skyrocketed and would have even without Citizens United).
109. Nat'l Inst. on Money in State Politics, Energy Horizon Technologies, FOLLOWTHEMONEY.ORG, http://www.followthemoney.org/database/StateGlance/ iespender.phtml?ie=6828
110. Nat'l Inst. on Money in State Politics, Koch Industries, FOLLOWTHEMONEY.ORG, http://www.followthemoney.org/database/StateGlance/ iespender.phtml?ie=9040.
111. Nat'l Inst, on Money in State Politics, Deloitte & Touche, FOLLOWTHEMONEY.ORG, http://www.followthemoney.org/database/StateGlance/ iespender.phtml?ie=5242. This independent expenditure appears to have been made in violation of the corporate independent expenditure ban.
112. Nat'l Inst, on Money in State Politics, Lutak Lumber & Supply, Inc., FOLLOWTHEMONEY.ORG, http://www.followthemoney.org/database/StateGlance/ iespender.phtml?ie=4631.
113. See Austin V. Mich. State Chamber of Commerce, 494 U.S. 652, 659-60 (1990),
114. overruled by Citizens United V. FEC, 130 S. Ct. 876 (2010).
115. For example, the Court upheld an aggregate limit on contributions to candidates, political committees, and parties in Buckley. Note that at the time of this writing, the Court had agreed to hear a case challenging these aggregate limits. See McCutcheon V. FEC, 893 F. Supp. 2d 133 (D.D.C. 2012), prob, juris, noted, 133 S. Ct. 1242 (2013).
116. Citizens United, 130 S. Ct. at 903-11.
117. Id. at 2826 (quoting Buckley V. Valeo, 424 U.S. 1, 14 (1976)).
118. Caperton V. A.T. Massey Coal Co., 129 S. Ct. 2252, 2263-64 (2009) ("We conclude that there is a serious risk of actual bias-based on objective and reasonable perceptions-when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent.").
119. See generally MARTIN GlLENS, AFFLUENCE AND INFLUENCE (2012)
120. JACOB S. HACKER & PAUL PIERSON, WINNER-TAKE-ALL POLITICS (2010)
121. KAY LEHMAN SCHLOZMAN, SIDNEY VERBA & HENRY E. BRADY, THE UNHEAVENLY CHORUS: UNEQUAL POLITICAL VOICE AND THE BROKEN PROMISE OF AMERICAN DEMOCRACY (2012)
122. SIDNEY VERBA, KAY LEHMAN SCHLOZMAN & HENRY E. BRADY, VOICE AND EQUALITY (1995).
123. See Stephen Ansolabehere, John M. de Figueiredo & James M. Snyder Jr., Why Is There So Little Money in U.S. Politics?, J. ECON. PERSP., Winter 2003, at 105, 125 (2003) ("It doesn't seem accurate to view campaign contributions as a way of investing in political outcomes. Instead, aggregate campaign spending in the United States, we conjecture, mainly reflects the consumption value that individuals receive from giving to campaigns.").
124. See Richard L. Hasen, Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC V. Wisconsin Right to Life, 92 MINN. L. REV. 1064, 1065 (2008).
125. See Thad Beyle & Jennifer M. Jensen, Gubernatorial Campaign Expenditures Database, UNC.EDU, http://www.unc.edu/~beyle/guber.html.
126. For IE data see Ctr. for Responsive Politics, 2012 Outside Spending, by Group, OPENSECRETS.ORG, http://www.opensecrets.org/outsidespending/fes-summ.php? cycle=2012.
127. For contributions information, see Ctr. for Responsive Politics, 2012 Presidential Race, OPENSECRETS.ORG, http://www.opensecrets.org/pres12/index.php.
128. See Bill Allison, Yes, Virginia (and Dan and Wendy), Citizens United Opened the Door to Unlimited Money, SUNUGHT FOUND. BLOG (Feb. 27, 2012, 2:15 PM), http://sunlightfoundation.com/blog/2012/02/27/yes-virginia-and-dan-and- wendy-citizens-united-opened-the-door-to-unlimited-money/
129. ("Citizens United, along with subsequent court decisions and FEC rulings stemming from it, has radically broadened the means available to well-heeled individuals, not to mention labor unions and corporations, to influence federal elections."); Adam Skaggs, Thanks, Citizens United, for This Campaign Finance Mess We're In, ATLANTIC, (July 27, 2012, 10:15 AM), http://www.theatlantic.com/politics/archive/2012/07/thanks-citizens-united-for- this-campaign-finance-mess-were-in/260389/ ("[T]hose criticizing the critics of Citizens United miss the forest for the trees. Their myopic focus on debunking overstatements about the case downplays the major role Citizens United played in ushering in current conditions - and how it fits with the Roberts Court's ongoing project to put our democracy up for auction.").
130. Citizens United V. FEC, 130 S. Ct. 876, 886, 896-99 (2010).
131. See, e.g., Nicholas Confessore & Eric Lipton, For Gingrich, a Rich Friend and a Big Lift, N.Y. TIMES, Jan. 10, 2012, at A1 (Sheldon Adelson's "last-minute interjection underscores how [Citizens United] has made it possible for a wealthy individual to influence an election.").
132. See, e.g., Todd Ruger, 'Citizen Conventions' Should Respond to Citizens United, Harvard Law Professor Suggests, NAT'L L.J. (July 24, 2012), http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202564279571&Citizen- conventions-should-respond-to-Citizens-United-Harvard-law-professor-suggests# (subscription required) ("In Citizens United, the Court found that corporations and unions cannot be banned from making independent expenditures to political action committees or candidates.").
133. See, e.g., Charles Lane, Editorial, Confidence and the Court, WASH. POST, Apr. 24, 2012, at A19 (citing Citizens United, which "overturned an act of Congress limiting corporate and union campaign contributions.").
134. For more, see generally Justin Levitt, Confronting the Impact of Citizens United, 29 YALE L. & Pol'y REV. 217 (2010).
135. Citizens United, 130 S. Ct. at 915.
136. Doe V. Reed, 130 S. Ct. 2811, 2837 (2010) (Scalia, J., concurring in the judgment). This case addressed the disclosure of petition signatures for those opposed to same-sex marriage. Id. at 2813.
137. Section 501(c) organizations spent approximately $460,000 of $268 million in outside spending in 2006. See Ctr. for Responsive Politics, 2006 Outside Spending, by Group, OPENSECRETS.ORG, http://www. opensecrets.org/outsidespending/sunim.php7cycle=2006&disp=O&type= I&chrt=D.
138. Section 501(c) organizations spent $77 million of $395 million in outside spending in 2010. See Ctr. for Responsive Politics, 2070 Outside Spending, by Group, OPENSECRETS.ORG, http://www.opensecrets.org/ outsidespending/summ.php?cycle=2010&chrt=D&disp=0&type=I.
139. E-mail from Denise Roth Barber, Managing Dir., Nat'l Inst. on Money in State Politics, to Douglas M. Spencer, Ph.D. Candidate, UniV. of Cal., Berkley (Mar. 8, 2011, 6:31 PM) (on file with authors). Note that even after updating their data in 2012, the Institute described only twenty states as having "relatively robust disclosure". Those states are Arkansas, Arizona, California, Colorado, Connecticut, Florida, Idaho, Iowa, Maine, Massachusetts, Michigan, Minnesota, Missouri, North Carolina, Ohio, Oklahoma, Tennessee, Texas, Washington, and Wisconsin. Kevin McNellis & Robin Parkinson, Independent Spending's Role in State Elections, 2006-2010, FOLLOWTHEMONEY.ORG (Mar. 15, 2012), http://www.followthemoney.org/press/ReportView.phtml?r=481.
140. HEATHER K. GERKEN, THE DEMOCRACY INDEX 40 (2009).
141. See, e.g., Brown V. Socialist Workers '74 Campaign Comm. (Ohio), 459 U.S. 87, 98-101 (1982) (holding that the members of the Socialist Workers Party, a minority party whose members had a history of harassment by the government and private parties, were exempt from reporting requirements in Ohio that required the name and address of campaign contributors and recipients of campaign disbursements).
142. See, e.g., Michael D. Gilbert, Campaign Finance Disclosure and the Information Tradeoff, 98 IOWA L. REV. 1847, 1858-60 (2013) ("[The] government has an interest in helping voters to align their political preferences with their votes, and disclosure furthers that goal. In short, disclosure helps voters to vote more competently." (footnote omitted)).
143. See Richard Briffault, Campaign Finance Disclosure 2.0, 9 ELECTION L.J. 273 (2010)
144. Scott M. Noveck, Campaign Finance Disclosure and the Legislative Process, 47 HARV. J. ON LEGIS. 75 (2010)
145. Bruce Cain, Shade from the Glare: The Case for Semi-Disclosure, CATO UNBOUND (NoV. 8, 2010), http://www.cato-unbound.org/2010/11/08/bruce-cain/shade- glare-case-semi-disclosure.
146. Austin V. Mich. State Chamber of Commerce, 494 U.S. 652, 660 (1990) (emphasis added),
147. overruled by Citizens United V. FEC, 130 S. Ct. 876 (2010).
148. Supplemental Brief for the Appellee, supra note 66, at 6. Note that the government abandoned its reliance on the antidistortion rationale in its supplemental brief, despite favoring strict restrictions (including a ban on independent expenditures) on corporate political activity. For a discussion of the government's strategy to orphan the antidistortion rationale, and the possible consequences of this strategy, see generally Richard L. Hasen, Citizens United and the Orphaned Antidistortion Rationale, 27 GA. ST. U. L. REV. 989 (2011).
149. Citizens United V. FEC, 130 S. Ct. 876, 913 (2010) ("Due consideration leads to this conclusion: Austin should be and now is overruled." (citation omitted)).
150. Id. at 904 (quoting Buckley V. Valeo, 424 U.S. 1, 48 (1976)).
151. Id. at 904-05 ('"Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, Art. I § 2, and it is a dangerous business for Congress to use the election laws to influence voters' choices.'" (quoting Davis V. FEC, 554 U.S. 724, 742 (2008))).
152. Cass R. Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1392 (1994).
153. Citizens United, 130 S. Ct. at 939 (Stevens, J., dissenting) ("The Court proclaims that 'Austin is undermined by experience since its announcement.' This is a curious claim to make in a case that lacks a developed record. The majority has no empirical evidence with which to substantiate the claim; we just have its ipse dixit that the real world has not been kind to Austin. Nor does the majority bother to specify in what sense Austin has been 'undermined.' Instead it treats the reader to a string of non sequiturs: 'Our Nation's speech dynamic is changing'; '[s]peakers have become adept at presenting citizens with sound bites, talking points, and scripted messages'; '[corporations... do not have monolithic views.' How any of these ruminations weakens the force of stare decisis, escapes my comprehension." (alterations in original) (citations omitted)).
154. See Caperton V. A.T. Massey Coal Co., 129 S. Ct. 2252, 2255, 2264-65 (2009) (ruling that half a million dollars in independent expenditures, combined with $2.5 million in donations to a section 527 organization and direct contributions of the statutory maximum amount allowed all were enough to create a "a serious risk of actual bias" for the judge who benefitted from the spending and later hears a case in which the spender is a party).
155. See, e.g., Ansolabehere et al., supra note 156, at 125 ("Much of the academic research and public discussion of campaign contributions appears to be starting from some misguided assumptions."); see also Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. PA. L. REV. 119, 122 (2004) ("[TJrends in general attitudes of corruption seem unrelated to anything happening in the campaign finance system (e.g., a rise in contributions or the introduction of a particular reform).").