About the Author: Joseph Goldberg is a first year law student at American University- Washington College of Law. Joseph graduated from Florida State University and hopes to work in political law, focusing on campaign finance regulation and compliance after graduating law school. 

 

In the week leading up to the 2020 General Election, campaign spending in federal races was on track to hit a record fourteen billion dollars.[1] Simultaneously, public trust in government remains at an all-time low.[2] There has long been a presumption in the world of campaign finance that there is a direct causal relationship between regulation and the electorate’s faith in government. This presumption, however, exists without empirical support.[3] As a result, the conversation regarding campaign finance has met challenges when determining how a faith-in-government rationale should be applied.

Restoring the electorate’s faith in government was a driving force behind The Bipartisan Campaign Reform Act of 2002 (BCRA). The BCRA sought to restructure campaign finance law in the United States as it related to the abilities of political parties and candidates to raise and spend soft money.[4] Senator McCain, prior to passing the BCRA, stated that the Act would work  “to restore the public’s faith in government.”[5] However, the Supreme Court, in Citizens United v. FEC found the opposite, stating that corporate political expenditure would not result in “the electorate to lose faith in our democracy.”[6] Here, the Court went so far as to claim that such expenditures, by persuading the electorate, support the concept that “people have the ultimate influence over elected officials.”[7]

In several cases, the Court has used a faith-in-government rationale to uphold contribution limits.[8] In Buckley v. Valeo, the Court established that a public appearance of corruption was of almost equal concern than a danger of actual “quid pro quo” arrangements.[9] The Court drew a line between limits on contributions and limits on expenditures in McConnell v. FEC, finding that large financial contributions may erode public confidence through the appearance of corruption.

Nonetheless, opponents of the court’s Citizens United decision often use a faith-in-government rationale to make a case for expenditure limits. Senator Tom Udall, the New Mexico senator who filed a resolution in 2019 to overturn the decision in Citizens United, has said “[n]ow, citizens are losing faith in our institutions because they have every reason to believe that their government no longer answers to them.”[12] Public perspective on the matter seems to agree; seventy-seven percent of Americans think there should be limits on the amount a group can spend on campaigns.[13] The court, in Citizens United, failed to provide any empirical evidence to show that there was no relationship between corporate political expenditures and the electorate’s faith in government.[14]

In fact, there is little evidence to show that such a causal relationship exists in the first place.[15] From an empirical standpoint, it is known that campaign spending has little effect on votes.[16] When it comes to measuring the effect of campaign finance laws on the perception of corruption, studies have weighed survey results measuring political efficacy against variables of state campaign finance laws. These have tended to show little to no effect.[17]

Campaign spending is growing while the public’s faith in government is shrinking. However, absent a control survey, it is impossible to draw a causal link between these two events. The complexities of the relationship between public perspective of government and campaign finance have yet to be determined. Nonetheless, these two concepts have been picked up in campaign finance reform public discourse which has led to challenging dialogue where the presumption of a causal link is a tool for and against regulations without consideration for its validity.

 

[1] Fredreka Schouten, The 2020 Election Battle for the White House and Congress Poised to Hit Record-shattering $14 Billion, CNN (Oct. 28, 2020, 7:17 PM), https://www.cnn.com/2020/10/28/politics/2020-election-spending/index.html.

[2] American’s Views of Government: Low Trust, but Some Positive Performance Ratings, Pew Research Center (Sept. 14, 2020), https://www.pewresearch.org/politics/2020/09/14/americans-views-of-government-low-trust-but-some-positive-performance-ratings/.

[3] David M. Primo & Jeffrey Milyo, Campaign Finance Laws and Political Efficacy: Evidence from the States, 5 Election L. J. 23, 25 (2006).

[4] Fed. Elections Comm’n, FAQ on the BCRA and Other New Rules (Feb. 2005), https://transition.fec.gov/pages/brochures/bcra_brochure.pdf.

[5] Miriam Valverde, Sen. John McCain Fought to Clean up Money in Politics. Are we Better Off Today?, Politifact (Aug. 31, 2018), https://www.politifact.com/article/2018/aug/31/sen-john-mccain-fought-clean-money-politics-are-we/.

[6] Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 357 (Jan. 2010).

[7] Id.

[8] Buckley v. Valeo, 424 U.S. 1, 25 (Jan. 1976); McConnel v. Fed. Election Comm’n, 540 U.S. 93, 94-5 (Dec. 2003).

[9] Buckley, 424 U.S. at 25.

[10] McConnel, 540 U.S. at 94-5.

[11] Citizens United, 558 U.S. at 357.

[12] Press Release, Sen. Mark R. Warner, Udall, Shaheen & All Senate Democrats Introduce Constitutional Amendment to Overturn Citizen United (July 30, 2019) (on file with author) https://www.warner.senate.gov/public/index.cfm/2019/7/udall-shaheen-all-senate-democrats-introduce-constitutional-amendment-to-overturn-citizens-united.

[13] Bradley Jones, Most Americans Want to Limit Campaign Spending, Say Big Donors Have Greater Political Influence, Pew Research Center (May 8, 2018), https://www.pewresearch.org/fact-tank/2018/05/08/most-americans-want-to-limit-campaign-spending-say-big-donors-have-greater-political-influence/.

[14] Citizens United, 558 U.S. at 357.

[15] Primo, supra note 13, at 24.

[16] Peter H. Schuck, Campaign-Finance Reform Revisited, Nat’l Aff., Winter 2019, at 76, 83 (2019),  https://www.law.berkeley.edu/wp-content/uploads/2019/10/Campaign-Finance-Reform-Revisited.-National-Affairs.-Winter-2019.pdf.

[17] Primo, supra note 13, at 34.