The End of Campaign Finance Law

Michael S. Kang, The End of Campaign Finance Law, 98 Va. L. Rev. 1 (2012).

Abstract:  The Article argues that Citizens United v. FEC ended campaign finance law as we long knew it, but along lines that have little to do with corporate electioneering. Although the public outcry focused on the decision’s narrow effect on corporations, the Article demonstrates how the decision’s broader logic transformed campaign finance law beyond corporate electioneering and led within months to the nearly complete de-regulation of independent expenditures in time for the 2010 elections. Those elections provided only a glimpse of what the Article calls the reverse hydraulics of de-regulation, and as the Article argues, this new de-regulated world of campaign finance is not a better one. Citizens United therefore is a turning point not just for campaign finance law, but all regulation of the relationship between campaign money and the political process. However, the Article surprisingly concludes in the end that the Supreme Court may still be somewhat sympathetic to alternate forms of regulation of political corruption, notwithstanding Citizens United’s broad skepticism about corruption. Namely, the Court may be more sanguine toward government regulation of campaign money’s influence when it is structured as ex post regulation of the legislative process on the back end, as opposed to the ex ante structure of campaign finance regulation. Citizens United, when considered in light of other recent Court decisions, points this way forward for campaign finance reform without campaign finance regulation.

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