Recalibrating Campaign Finance Law

Abstract

Campaign finance law is entering a new era, again. The laissez faire approach of campaign finance regulators in the Gilded Age ushered in the anti-corruption and publicity acts of the Progressive Era. Eventually, the detailed regulatory apparatus of the post-Watergate reform era and the subsequent constitutional compromise under Buckley v. Valeo displaced the original reforms. In turn, that regime gave way to the Bipartisan Campaign Reform Act of 2002 (BCRA) and similar policy patchworks. Then came the response of Citizens United v. Federal Election Commission and related cases. In this new era, spending prohibitions are out of the question, contribution limits are suspect, and robust public funding now may be impracticable or unpopular. Yet broad disclosure requirements find a sound constitutional footing. As campaign finance regimes transition away from regulating which actors can spend money in elections, the central policy and legal questions going forward will ask how much an actor may spend without triggering contribution limits or disclosure requirements.