Introduction
Despite the Constitution’s silence on the issue of campaign finance, the Supreme Court has had a considerable hand in shaping the campaign finance regulatory structure of the United States. There are countless criticisms of the campaign finance system the Court has constructed. On the one hand, some scholars stipulate that, though they are critical of the system, it is an intelligible “product” of the Constitution. On the other hand, others argue that the “vision of democracy” portrayed in money-in-politics decisions is not faithful to the Constitution.
Those who believe the regulatory system is a proper reflection of the Constitution argue that the system the Court’s interpretation of the Constitution has created is inadequate because constitutional law is not equipped to build a structure to regulate speech and campaign money. This argument notes that rather than building a functional system, the Constitution is limited to merely regulating the conditions in which the structure is built. These scholars categorize this result as “perverse as public policy, and deeply unsatisfying from the standpoint of democratic theory.”
Scholars who believe the regulatory system is a poor reflection of the Constitution advance the idea that campaign finance schemes are not necessarily something the Court and the Constitution cannot regulate well, they are just something the Court and the Constitution have not regulated well. This view aligns with Justice Kagan’s dissent in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. There, Kagan expresses concern that public financing schemes that best benefit anti-corruption interests “clash[] with our Constitution,” at least given the way campaign finance jurisprudence has developed.
Though scholars criticize different aspects of the relationship between the Court, the Constitution, and campaign finance regulations, there is a convergence of thought: the Court has done a poor job developing campaign finance jurisprudence. It is important to note that these criticisms are not just about the campaign finance system the Court has created, but also about how both the system and the Court handle attempts at reform. In confronting these reforms, the Court has consistently taken the opportunity to narrow a state’s interest in campaign finance reform. Some critics have gone so far as to argue that the ad hoc manner in which the Court renders campaign finance decisions indicates a lack of understanding about how American democracy operates.
Public opinion overwhelmingly favors campaign finance reform. Seventy-seven percent of Americans believe there should be limits on how much individuals and groups spend on campaigns, and sixty-five percent believe new laws should be written to reduce the role of money in politics. A prodigious barrier to campaign finance reform is its constitutional liability. For example, reform efforts that focus on limiting expenditures have had an “almost unbroken streak” of losses in the courts. The strain between what the Supreme Court finds constitutionally permissible and what makes a comprehensive regulatory structure is at the crux of good-government campaign finance regulation.
The culmination of these criticisms and real-life reform efforts is the question of whether constitutional law is the appropriate tool for optimizing the campaign finance regulatory system. As regulations that attempt to reform campaign finance have been construed as “constitutionally suspect,” the question of whether lawmakers should be granted leeway to work outside of the confines of the Constitution to regulate conditions has developed. In a similar vein, other scholars have gone so far as to suggest dejudicializing campaign finance, but are explicit in not going so far as to deconstitutionalize it. Others have made calls to circumvent the Supreme Court altogether and enact reform, not through legislation, but through Congress’s internal ethics codes.
Outside of these creative but improbable solutions, many localities and states have attempted to level the playing field and incentivize various public financing options. When one conceptualizes campaign finance law as a web made up of statutes and court decisions, these state and local programs can be conceived as existing within the gaps of that web. Many states and localities use some form of public funding as a prophylactic to corruption. This Note will focus on one of the largest and most successful programs: New York City’s matching funds system. In the face of an extremely public suicide by a municipal employee and mounting evidence of widespread corruption, New York City implemented massive campaign finance reforms in the form of a public matching program in 1989. Three election cycles later, Nicole Gordon, the Executive Director of the New York City Campaign Finance Board (CFB) from 1988 to 2006, deemed the program a success, but remained concerned that the reforms would prove fragile in the long run. The continued success of the program did not appear inevitable—in the late 1990s, Gordon expressed concern that the success would fade with both board appointees who were not committed to the purposes of the law and a potential lack of “constant reinforcement through legislative change.” She suggested the continued success of the program rested on “the good faith of many players in the political scene.”
Twenty-five years since Gordon’s comments, the New York City public funding system remains vulnerable, especially in the face of continuous assaults on campaign finance regulation. The crux of the New York City Matching Funds Program—expenditure limits—is in undeniable tension with the Supreme Court’s canonical campaign finance decision Buckley v. Valeo. Gordon’s comments were made before a series of cases continued the gutting of campaign finance, including Citizens United v. FEC, Davis v. FEC, and Bennett. New York City’s program has survived those changes, but the continued success of public funding schemes remain precarious. The underpinnings of her anxieties about the continuing success of the New York City system are echoed in the scholarly criticisms of the Court and Justice Kagan’s analysis of constitutional limitations on creating a functional campaign finance system.
New York City’s program, like many good-government initiatives meant to serve as a counterbalance to the Supreme Court’s campaign finance jurisprudence, exists within the gaps of what is permissible. By instituting a program that is in direct conflict with Supreme Court jurisprudence, a certain level of democratic experimentation that has led to the rise and endurance of the program. The New York City CFB has been clear and consistent that the underpinning of the entire scheme is the concern that money in politics is a corrupting influence. The CFB relies on that ethos to maximize the limits they impose, going against almost every rule Buckley has put in place. As governments enact policies with stricter limits to curb the appearance of corruption, the Supreme Court has proceeded in the complete opposite direction. This has resulted in, and will continue to result in, challenges to reform efforts. Public financing, which the Court held permissible in Buckley, is one of the only remaining pathways to reform that can survive constitutional scrutiny.
Part I of this Note will provide background on political spending today, how states and municipalities attempt to curb that spending, and the origins and building blocks of both the federal regulatory system and the New York City matching funds system. Part II will provide analysis on the Supreme Court cases that have narrowed corruption interests so intensely post-Buckley and analyze how these narrowing interests have affected campaign finance jurisprudence and public funding. Part III will propose public funding of elections—using New York City as a case study—as a blueprint for how to enact reform that will survive constitutional challenges.