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16 Election L.J. 1 (2017)

handle is hein.journals/enlwjr16 and id is 1 raw text is: Beyond Corruption: New Approaches for Regulating Money in Politics David Schultz B UCKLEY V. VALEO1 continues to cast a long shadow on the law regulating the role of money in American politics. Decided more than 40 years ago, Buckley persists as the singularly most important prece- dent in the field of election law and campaign finance. It articulated many important points such as declaring that money implicates important First Amendment values,2 although it never said money is speech even though many contend or believe it did.3 The Buckley Court dis- tinguished contributions from expenditures,4 issue ver- sus express advocacy,5 and it pronounced arguments for disclosure that remain controlling even in an in- creased era of dark money.6 But among perhaps the most important principles developed in Buckley was the argument that the only interest sufficiently compelling enough to justify limits on the use of money for political contributions and expenditures was that of showing corruption or its appearance.7 In the original Buckley opinion, the Court concluded that the showing of corruption or its appearance was enough to uphold contribution limits and that at that time there was insufficient ev- idence to do so for expenditures.8 But it has become clear in subsequent cases that the Court, especially under Chief Justice Roberts, has turned this concep- tual distinction into a categorical one such that it seems unlikely that in the near future the Court will ever find a limit on expenditures to be constitutional or that, despite the language of Austin v. Michigan Chamber of Commerce,9 it will ever again consider more than the most narrowly construed sense of cor- ruption as quid pro quo as a legitimate basis for reg- ulating political uses of money. At least that is the message of Citizens United v. Federal Election Com- mission.10 Additionally, even when it comes to con- tribution limits, the Court, while expressing fidelity David Schultz is a professor in the Department of Political Science at Hamline University in St. Paul, Minnesota, and a professor of law at the University of Minnesota School of Law in Minneapolis, Minnesota. to Buckley, has narrowed its scope of what corruption means and has applied it such that it has also, in McCutcheon v. Federal Election Commission, invali- dated aggregate contribution limits.1 Buckley endures in theory, but in reality, it is a corpse, nearly dead and scorned by those on the polit- ical left and right. The problem is that the Buckley rules were never clear. How is money related to speech? What is corruption or its appearance, is it pos- sible to draw lines between political contributions and expenditures, and who is entitled to speak with money? All these are vague legal doctrines, and oppo- nents of campaign finance reform have exploited am- biguity, arguing that there was no principled way to draw lines that separate free speech from conduct. The Roberts Court has deftly targeted the failures of the current regulatory regime under Buckley to provide satisfactory answers to the exact constitutional status of money in politics. The Roberts Court has steadily chipped away at campaign finance regulations, and it will continue to do so. Its narrowed concept of corrup- tion will be used to invalidate individual contribution limits. It will come to reject the appearance standard as vague and not as demonstrating real corruption. The next step will then be to argue that current stan- dards to regulate real corruption are over-inclusive- what is real corruption unless one can show real '424 U.S. 1 (1976). 2Id. at 23. 3See, e.g., J. Skelly Wright, Politics and the Constitution: Is Money Speech, 85 YALE L. J. 1001 (1975-76); BRADLEY A SMITH, UNFREE SPEECH: THE FOLLY OF CAMPAIGN FINANCE REFORM 112 (2001); JOHN SAMPLES, THE FALLACY OF CAMPAIGN FINANCE REFORM 2, 32, 40, 267 (2006). 4424 U.S. at 20-21. 5424 U.S. at 44 n.52. 6424 U.S. at 66-7. See also Doe v. Reed, 561 U.S. 186 (2010). 7424 U.S. at 26-7. 1d. at 46. 9494 U.S. 652 (1990). '0538 U.S. 310 (2010). 572 U.S. ___, 134 S.Ct. 1434 (2014). 1 ELECTION LAW JOURNAL Volume 16, Number 1, 2017 © Mary Ann Liebert, Inc. DOI: 10.1089/elj.2017.0429 Introduction

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