This article is based on research and content published in Big Money Unleashed: The Campaign to Deregulate Election Spending, by Ann Southworth (University of Chicago Press, 2023).
Americans across party lines believe that reducing the influence of big money in politics should be a top policy priority. But legislators are constrained in responding to these concerns by a series of Supreme Court decisions finding that campaign finance regulations violate the First Amendment.
The U.S. Constitution does not mention campaign finance. How, then, did we arrive at an understanding of the First Amendment that makes most campaign finance regulation vulnerable to constitutional challenge?
The central claim of my new book, Big Money Unleashed: The Campaign to Deregulate Election Spending, is that nonjudicial actors—lawyers, advocacy organizations, patrons, and their networks—played important roles in the creation of this constitutional law. Drawing from anonymous interviews with 52 lawyers who participated in major cases, as well as public records and archival materials, the book explores how these actors pursued an incremental litigation campaign, modeled on the NAACP’s strategy for attacking racial segregation, to resist campaign finance regulation.
The Supreme Court’s first major decision on the topic, Buckley v. Valeo (1976), involved a challenge to reform legislation adopted in the wake of the Watergate scandal. The Buckley opinion struck a compromise: it invalidated limits on campaign expenditures but upheld individual contribution limits, finding that the latter served a governmental interest in preventing corruption or the appearance of corruption. The justices’ votes cut across ideological and partisan lines. For years after Buckley, the Supreme Court upheld some regulations that could be construed as fighting corruption.
There was nothing inevitable about how those actors and resources came together to create new First Amendment law, and there was nothing inevitable about the resulting doctrine.
The situation is very different today. The Supreme Court has invalidated or severely limited nearly every campaign finance regulation it has considered since 2006. The most famous of these rulings, Citizens United v. Federal Election Commission (2010), held that corporations and unions have a constitutional right to spend unlimited amounts of money in federal candidate elections. The Court has also narrowed the definition of corruption, finding that the only type of concern that can justify regulation is quid pro quo corruption—trading money for political favors.1 Regulation may not target the special “influence over or access to” elected officials enjoyed by large donors.2
My book explores how we should understand the development of this doctrine and the change over time—from Buckley, which substantially accepted government regulation of campaign finance, to the much more skeptical stance expressed in Citizens United and other rulings by the Roberts Court.
The answer is partly about judicial appointments. The law began to shift dramatically in 2006, when Justice Samuel Alito replaced Justice Sandra Day O’Connor on the Supreme Court, giving opponents of campaign finance regulation the majority they needed to strike down these laws. The justices obviously were important players in this lawmaking process.
But also important were the attorneys who devised the legal theories, the advocacy groups that advanced those theories, the patrons who promoted and financed those efforts, and the networks through which these actors coordinated strategy and held the Supreme Court accountable. There was nothing inevitable about how those actors and resources came together to create new First Amendment law, and there was nothing inevitable about the resulting doctrine.
The first half of the book describes the litigation campaign. The second half explores key themes and implications.
Methodology
The book draws on a variety of sources. For three cases decided by the Roberts Court—Citizens United v. Federal Election Commission (2010), Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011), and McCutcheon v. Federal Election Commission (2014)—I compiled data about the alignments, missions, and financial supporters of the organizations that filed briefs, as well as biographical information about all lawyers on the briefs in those cases.
I also drew heavily from confidential semi-structured interviews conducted from July 2015 through November 2017 with 52 lawyers who participated in major cases challenging the constitutionality of campaign finance regulations. All but a few of the interviewed lawyers represented parties or filed amicus curiae (“friend of the court”) briefs in one or more of the three major campaign finance cases just mentioned. The opposing sides were equally represented in my sample. The interviewed lawyers represented key parties and amici, all the major constituencies active in the litigation, and all types of actors: political parties and candidates, sponsors and opponents of the legislation, other elected and appointed government officials, business and trade groups, labor unions, think tanks, advocacy organizations, and scholars.
The interviews focused primarily on:
- How and why the lawyers participated in the cases
- Their views about the holdings and reasoning and the broader stakes and consequences
- The lawyers’ strategies, including work outside the courts
- Their perceptions about their influence on the Supreme Court
- Cooperation and coordination among parties and amici
- The alignments of parties and amici
- The future of political and legal struggles over campaign finance regulation
The interviews lasted from 30 minutes to more than two and a half hours, and they were recorded, transcribed, and coded. To encourage lawyers to speak candidly, I assured them that I would not identify them or attribute quotations from the interviews without their permission.
The lawyers’ commentary provided invaluable insights into this remarkable process of constitutional lawmaking, including behind-the-scenes information on topics on which public sources are entirely silent. What these lawyers recounted in interviews illuminates how this campaign evolved and how it achieved considerable success. The lawyers witnessed critical strategic decisions—for example, about selecting test cases, framing issues, coordinating amicus participation, deciding which arguments to make and who would make them, and pursuing complementary strategies outside the courts. Their commentary helps to explain how the litigation coalition changed and grew, and why organizations claiming to represent the Republican base joined with business groups and Republican Party leaders, along with some civil libertarians, to assert that unregulated money in politics is an essential aspect of political speech and association. The commentary also sheds light on the lawyers’ backgrounds, their incentives and aspirations, their positions in professional networks and hierarchies, and their worldviews—all of which influenced the course of this campaign.
I am grateful for the time the interviewed lawyers gave me as I sought to understand how campaign spending came to be treated as speech, and regulation as censorship, in American constitutional law.
How I became interested in this topic
My interest in this topic grew out of research for another book, Lawyers of the Right: Professionalizing the Conservative Coalition (University of Chicago Press, 2008), a group portrait of lawyers active in causes of the political right. That book explored the challenges of managing deep differences in the policy priorities of the primary constituencies of the conservative legal movement. These constituencies mostly avoided direct conflict in Supreme Court litigation during the period covered by my research, but they generally did not actively assist one another. Campaign finance regulation was an exception; organizations linked with all the major strands of the Republican coalition joined together on the same side of litigation challenging the 2002 Bipartisan Campaign Reform Act (aka McCain–Feingold). I found it puzzling that social conservatives assisted in an effort that seemed likely to benefit primarily wealthy individuals and corporations, perhaps even at the expense of the more populist elements of the Republican alliance. That curious phenomenon was the impetus for the research that eventually led to Big Money Unleashed.
The campaign
The story begins in the early 1970s, when a few entrepreneurial lawyers demonstrated how a policy dispute playing out in Congress could be transformed into a constitutional battle waged through the courts. As told in chapter 2, free speech arguments were not central issues in congressional debates over the campaign reform legislation adopted in the wake of the Watergate scandal and later challenged in Buckley. Several witnesses and senators argued that any limit on media spending would violate the First Amendment, but there was little relevant precedent to support that claim. Nobody had yet crafted the arguments. It took entrepreneurial lawyers and scholars to do that work.
While Congress was considering the legislation, Ralph Winter, then a professor at Yale Law School, wrote two influential pamphlets published by the American Enterprise Institute. The pamphlets argued that limits on how much one can contribute to and spend on campaigns are constraints on the amount of political speech in which one can engage; that money is indistinguishable from other types of resources that influence elections and are unequally distributed in society, such as free time and celebrity; and that regulating money in elections amounts to discriminating against wealthy people. The pamphlets also suggested that “reformers” (a term used to describe those who defend campaign finance laws) were elites who controlled the political process and mistrusted voters’ ability to discern their own interests.
The arguments advanced in those publications laid the foundations for the litigation campaign and have served ever since as key points stressed by opponents of campaign finance regulation. The Supreme Court drew on those theories in its ruling in Buckley v. Valeo.
The effort to resist the regulation of campaign finance gained momentum in the 1990s and early 2000s, as opponents of regulation invested in specialized expertise, strategic case selection, and evocative rhetoric.
The early cases challenging the constitutionality of campaign finance regulation were not particularly partisan. Left-leaning civil libertarians played significant roles in these challenges. But the litigation campaign acquired a more partisan valence over time.
As described in chapters 3 and 4, the effort to resist the regulation of campaign finance gained momentum in the 1990s and early 2000s, as opponents of regulation (described as “challengers” throughout the book) invested in specialized expertise, strategic case selection, and evocative rhetoric. They established specialized groups to challenge restrictions, recruited ideologically committed lawyers, and introduced and reworked ideas to unite disparate groups and constituencies—or at least the lawyers for these groups and constituencies—around the idea that regulating campaign spending amounts to censoring political expression. Lawyers generated and refined legal theories, found sympathetic plaintiffs, and organized amicus support and media strategies. Opponents of regulation tapped into legal mobilization around abortion, guns, and Tea Party activism, as well as populist mistrust of elites, framing the effort as a fight on behalf of the little guy’s right to engage in free speech. They were attentive to signals from the justices. The Federalist Society’s Free Speech and Election Law Practice Group served as a site for cultivating arguments and coordinating strategy. Kentucky senator Mitch McConnell also played an important role. He led Republican opposition to campaign finance legislation, assembled teams of lawyers to challenge the regulations, recruited Federal Election Commission (FEC) commissioners who shared his opposition to campaign finance regulation, and oversaw the appointment of federal judges who would be receptive to this deregulatory agenda (and other Republican priorities). The American Civil Liberties Union (ACLU) and some labor groups offered partial support (more on this below).
Specialized groups led the way in advancing the themes of the campaign and chipping away at restrictions on money in politics. A lawyer for one organization described the general strategy: “You take the low-hanging fruit. You build your precedent. You go to the next one, you take the next lowest hanging fruit, you build your precedent. . . That’s what we needed to do—a series of small cases, small steps, where we can point out to the Court, ‘Look, this can’t be right under the First Amendment,’ and then just keep building on it.” A lawyer for another group described his organization’s approach similarly: “[The organization] is always trying to find some issue that they can make actual practical incremental progress on. . . . You don’t go to the Court and say, ‘Strike down all the bad laws at once.’ It’s just not going to happen. Litigation and legal change, at least in the courts, is incremental change.” Specialized groups also pursued media strategies to complement the litigation.
“Phalanx of amici”
A lawyer who helped to organize amicus participation on the challengers’ side in Citizens United said that he had observed how reformers in previous cases had effectively deployed a “phalanx of amici.” The challengers needed a similar strategy—“a coordinated effort to try to break down some of these issues for the Court, spread the field, let them see a lot of different perspectives that they’re not getting—so that’s what we did.” Amicus coordination is always important, he explained, to ensure that “you don’t just have five different amici essentially repeating the arguments that are being made by the party on the merits.” But Citizens United “was one case where we really went at it . . .” He told amici on the challengers’ side:
Look. Here’s what we need. We need a brief from a bunch of academics to say, “Here’s the real history of campaign finance reform.” It’s not the history that’s in Auto Workers, the 1950s case where Frankfurter writes up this long bit of dicta about this glorious history of reform.3 We need someone to say, this is a grubby business of people trying to gain political advantage over one another—people grandstanding. This isn’t some heroic struggle against big money. So, we need somebody to file representing small nonprofits. We’d like a brief from former FEC commissioners talking about what it means in the actual enforcement. And we arranged that. We got lawyers to volunteer to represent those different kinds of groups and to sign on to this.
Another challenger recalled “lots of coordination” and discussion about what each group would say.
The effort described in the first half of Big Money Unleashed eventually resulted in major litigation victories for the challengers. Claims about the meaning of the First Amendment that were novel when introduced 50 years ago are now firmly embedded in constitutional law. That law is a source of power for those with big money to wield in elections and for the politicians who attract support from big-money players.
Reformers described the overall effect of these rulings as an almost complete breakdown of campaign finance regulation. One interviewed lawyer called the Roberts Court’s campaign finance rulings “kind of a signal to the world and to the lower courts to not take these laws very seriously and to start thinking about ways to get rid of them.” He continued: “A lot of what you’ve seen is people just ignoring them, in terms of setting up super PACs and using them basically as campaign arms [thereby violating the prohibition on coordinating with campaigns]. Nobody thinks any of these laws are constitutional anymore. And so they don’t pay attention to them. And the FEC has gotten itself into a position where it doesn’t enforce anything . . . and so the whole thing has kind of unraveled, and it’s going to continue to unravel, I think.” Another election law specialist agreed with this assessment, saying that “the campaign finance structure that was put into place in the early 1970s is coming unglued. . . . [W]e’re watching a slow-motion collapse without any real clear idea of what’s going be put in its place, if anything.”
Specialized groups and why they matter
According to Bradley Smith, a law professor and former FEC commissioner whom the New York Times once described as the “intellectual powerhouse” behind the campaign to deregulate campaign finance, reformers enjoyed several significant advantages in the 1990s.4 One was advocacy organizations that focused primarily on defending campaign finance laws. Such specialized groups on the reform side included Common Cause, the Brennan Center, and Democracy 21. In the late 1990s and early 2000s, opponents of campaign finance regulation established their own specialized groups and projects, including:
- The James Madison Center for Free Speech
- The Center for Competitive Politics, now called the Institute for Free Speech (IFS)
- A new focus on campaign finance at the Institute for Justice (IJ)
The activities of these organizations overlap. All of them pursue litigation and complementary media strategies. But these groups do not all serve the same function within the overall litigation campaign. The James Madison Center, for example, is tied to the antiabortion movement and conflicts over gay marriage in a way that IJ and IFS are not, while IJ and IFS have tighter connections to libertarian and business networks. IJ specializes in connecting the litigation campaign to stories about how regulation harms regular people. IFS is especially active in matters before the FEC.
Strange bedfellows?
“Campaign finance makes for strange bedfellows. There’s no doubt about it.”
—Interview with reformer
The alignments of parties and amici in Citizens United were broadly representative of the alignments in Supreme Court cases challenging campaign finance regulations since the early 2000s. Most of the groups that filed briefs in the case joined with their usual allies in electoral politics. Business, libertarian, and social conservative groups appeared with the Republican National Committee and Mitch McConnell on the challengers’ side, while liberals of various stripes joined with the FEC and the Democratic National Committee in defending the regulations. But two aspects of the litigation coalition on the challengers’ side might appear “strange” at first glance. One is the participation of groups associated with constituencies that generally stand behind the Republican Party but would seem to have little direct interest in striking down all limits on election spending by corporations. The other is the involvement of groups ordinarily associated with liberal causes.
The litigation coalition on the challengers’ side seems less strange after taking into account the history of the participating groups and their experience with campaign finance regulation, the political context in which the campaign unfolded, and the lawyer networks that facilitated cooperation.
The participation of the Republican Party and its leaders and allies was predictable given the party’s long history of resisting campaign finance regulation. (Most people think that unregulated political spending favors Republicans over Democrats, and the GOP’s consistent stance on the issue would suggest so. But academic research on the question is less clear.5 ) However, some groups linked with the populist elements of the Republican coalition do not have financial resources comparable with those of business interests and wealthy individuals. Moreover, the social backgrounds, values, and policy priorities of these people differ from those of business leaders. One might have expected this misalignment of resources, values, and policy goals to promote divisions within the ranks of the GOP coalition, reflecting what one interviewed challenger described as “utter suspicion and distrust between the more moneyed interests and the grassroots.” But lawyers for groups claiming to represent the party’s rank and file cooperated with “moneyed interests” in the effort to accomplish a broad ruling in Citizens United. They came together around the proposition that for-profit corporations deserve the same First Amendment protection for their election spending as individuals and ideologically motivated nonprofit groups.
A different kind of puzzle relates to the positions taken by the ACLU and the AFL-CIO. On many other policy issues, these organizations are fierce opponents of most of the groups that have led the fight against campaign finance regulation. But they lent partial support to the constitutional challenge in Citizens United.
Chapter 5 of Big Money Unleashed explores these “strange” alignments and tries to explain them. It suggests that the litigation coalition on the challengers’ side seems less strange after taking into account the history of the participating groups and their experience with campaign finance regulation, the political context in which the campaign unfolded, and the lawyer networks that facilitated cooperation. However, it remains puzzling in terms of the differing stakes for the participating groups. Some of the clients and constituencies have much more money to wield in politics than others and therefore seem more likely to benefit from the case outcomes. This has implications for issues of accountability, discussed briefly below.
Competing frames and discourses
“To limit money in politics is simply to limit communication or limit speech. It’s very simple and very straightforward, and very true. And there’s simply no refutation of that. . . . If you’re limiting money, you’re limiting speech.”
—Interview with challenger
“The intent [of campaign finance law] really is to silence conservative voices.”
—Interview with challenger
“We have lost our way when it comes to analysis of campaign finance. We view it solely via the lens of the First Amendment, and we only look at the purported free speech rights of the donor class, not the rest of the population, or 99 percent who don’t participate in making contributions or expenditures in the political process and can’t afford to . . . And that part of the population has, in our view, First Amendment rights and the right not to have their voices drowned out.”
—Interview with reformer
“The Roberts Court [is] giving us the Anatole France First Amendment, which means that the First Amendment in its majestic impartiality allows gigantic corporations and ordinary citizens alike to spend as much as they want electing their preferred candidates to office. And that’s the vision of equality and of the First Amendment that we’re left with. It is a completely sterile and formalistic view of rights and how they play out in our democracy, and it leaves people who don’t have money, don’t have immense aggregations of wealth that they can spend on politics . . . with less of a voice, and it leaves us with a system where . . . the strength of your voice depends on the size of your wallet. That’s not what democracy is supposed to look like.”
—Interview with reformer
As explored in chapter 6 of Big Money Unleashed, the arguments advanced to attack campaign finance regulations in the 1970s remain key themes for lawyers involved in challenging regulations today. But those arguments are now expressed in balder terms. The book documents the pervasive language of censorship in the challengers’ briefs and interview commentary—and in the Roberts Court’s opinions in these cases. Such language was mostly absent in the party and amicus briefs and opinions in Buckley.
No simple word or phrase sums up the reformers’ position in a way comparable to how speech and censorship serve as shorthand for the challengers’ position. In their briefs, reformers focused on concerns about corruption, as defined by the Roberts Court to include only quid pro quo corruption—the trading of cash for votes—because that is the only justification for regulating campaign finance now accepted by the Court. But in interviews, where they were free from the constraints of the doctrine, reformers spoke more expansively about what they believed was necessary to protect American democracy. Some of them talked about political equality—a rationale for regulating that the Supreme Court rejected in Buckley and again in Citizens United.
Issues of accountability
As noted above, the leaders of the campaign to resist the regulation of money in politics borrowed and built upon a model of constitutional change forged by civil rights and civil liberties activists in an earlier era. But that law reform model attracted substantial criticism in the Warren and Burger court years, mostly but not exclusively from the political right. Critics argued that unelected judges and activist lawyers were exercising powers that properly belonged to the elected branches and that they were proclaiming rights not found in the Constitution, using illegitimate methods of interpretation and reasoning. They also questioned whether the advocates who brought the cases truly represented the clients and constituencies on whose behalf they claimed to speak, whether ideological commitments led them to disregard or downplay the interests and priorities of their clients, and whether they should be permitted to make laws affecting people whose interests were not adequately represented in the litigation. Harvard law professor Derrick Bell famously questioned the conduct of some NAACP lawyers in connection with the campaign to achieve racial equity in public schools, asserting that the lawyers’ “single-minded commitment” to maximum school desegregation led them to disregard the wishes of some Black parents who placed a higher priority on improving educational opportunities for their children.6 Critics raised similar questions about lawyer accountability to clients and affected constituencies in campaigns for abortion rights and marriage equality.7
The tables have turned, and the scripts have flipped. The lower federal courts are well-stocked with judges drawn from and vetted by Federalist Society and Heritage Foundation networks, and movement conservatives now hold a 6–3 super majority on the Supreme Court. Dozens of well-funded conservative and libertarian legal advocacy organizations are pursuing litigation campaigns, and they have won major rulings on a host of issues—including guns, abortion, voting rights, religious liberty, affirmative action, environmental regulation, and much more. Some of these rulings are antithetical to the goals of the movements that developed the strategies. Liberals and progressives are now the ones crying foul and raising concerns about the legitimacy of the process.
The book invites renewed consideration of long-standing concerns about our system of resolving constitutional rights claims through the courts.
As explored in chapter 7 of Big Money Unleashed, the interviewed lawyers’ commentary reflected these dynamics. Reformers portrayed themselves as almost helpless bystanders in a process by which challengers and the Supreme Court have dismantled campaign finance regulation in defiance of judicial norms and the will of most voters. Some reformers insisted that the justices had violated their own professed obedience to constitutional text and history. They rejected challengers’ attempts to draw a parallel between the campaign to deregulate campaign finance and the NAACP’s campaign against racial segregation. They also questioned the accountability of some of the lawyers and leaders of this litigation campaign, suggesting that there was a gap between positions taken in the litigation and the preferences and interests of the people they claimed to represent. The challengers asserted that the justices had complied with judicial norms, and they defended their own roles in this litigation campaign. They portrayed themselves and the justices as modern First Amendment champions—inheritors of a noble law-reform tradition pioneered by NAACP lawyers. These competing accounts provide a window into how polarized legal elites today view the Supreme Court and the constitutional doctrine that the conservative justices work in complementary ways with politically aligned advocacy groups to produce.
The book invites renewed consideration of long-standing concerns about our system of resolving constitutional rights claims through the courts. It poses questions about the susceptibility of constitutional law to reshaping by politically motivated and well-resourced actors. It also raises questions about the responsibilities of those who pursue constitutional rights campaigns that have far-reaching practical and symbolic consequences for people not represented in the litigation. These questions are important, even if those leading the campaigns and the justices who issue the rulings insist that the rights they declare were there in the Constitution all along.
Big Money Unleashed
Big Money Unleashed is an account of the creation of constitutional law that gives opponents of regulation confidence that they will prevail in the courts even if legislators try to impose new restrictions on big money in American politics. It explores the processes that generated the Roberts Court’s momentous campaign finance decisions and the larger political dynamics surrounding them.
The justices played central roles, of course, but so did the lawyers and organizations that filed the lawsuits, the individuals and institutions that generated legitimacy for the arguments presented in those cases, political and financial backers, and networks connecting the actors.
Unlike the NAACP’s litigation campaign on which this effort was modeled, the effort to deregulate campaign finance was not built upon a citizens’ movement. The pressure that generated the constitutional change did not come from below—or at least it did not begin that way. It began with wealthy individuals who wanted to use their financial resources to influence elections, and with the lawyers who demonstrated how the First Amendment could facilitate that goal.
The story told in Big Money Unleashed demonstrates—if any such evidence were necessary—that the development of constitutional law does not stand apart from politics.
The conservative legal movement provided some of the resources and a favorable environment for this litigation campaign. It spawned most of the groups that participated on the challengers’ side, including specialized organizations that took the lead early in the first decade of the 2000s. The Federalist Society served as a site for coordinating amicus participation, and it provided a sympathetic elite audience for the rulings. Advocacy groups linked to the conservative legal movement policed the judicial nominations process to ensure that justices appointed by Republican presidents would share their claims about constitutional meaning. The campaign also benefited from the participation of several old-line liberal interest groups.
The story told in Big Money Unleashed demonstrates—if any such evidence were necessary—that the development of constitutional law does not stand apart from politics. Lawyers, advocacy groups, and political and financial patrons worked through the courts to alter what falls into the category of constitutionally protected free speech and association. As they sought to expand constitutional protection for campaign spending, they made common cause with advocates who saw how free speech claims could be similarly useful in other policy battles—e.g., over economic regulations, union activities, consumer protection, abortion, and LGBTQ rights. An emerging conservative media ecosystem helped to disseminate these ideas about the meaning of the First Amendment.
Almost half a century after the Supreme Court’s ruling in Buckley, battles over regulating money in politics continue unabated. As one leading reformer said of his side’s string of setbacks in the courts, Congress, and the FEC, “There’s never an end to this. There’s only a middle.” Advocates on opposing sides seek advantage in different arenas of contest, including the courts, agencies, legislatures, and media.
Those who hope to loosen constitutional law’s constraints on regulating money in American politics have extraordinarily difficult work ahead. The challengers’ perspectives are now well-entrenched in major Supreme Court precedents. If the doctrine now tilts too far toward a libertarian conception of the First Amendment, and if it rests on a flawed conception of democracy that prioritizes responsiveness to major donors over accountability to the people, achieving a better balance will require major long-term investments like the ones that got us here. It will also require attention to players and processes that extend well beyond the Supreme Court.
Ann Southworth is professor of law at the University of California, Irvine School of Law and co-director of the Center for Empirical Research on the Legal Profession. Professor Southworth teaches and writes on the legal profession and lawyers who serve causes, with an emphasis on lawyers’ norms, professional identities, practices, organizations, and networks. She has published numerous articles on civil rights and poverty lawyers, lawyers involved in national policy-making, and advocates for conservative and libertarian causes, as well as a book on the conservative legal movement, Lawyers of the Right: Professionalizing the Conservative Coalition (University of Chicago Press 2008).
- For examples of other Roberts Court decisions invalidating campaign finance laws, see Davis v. Federal Election Commission (2008) (striking down the “Millionaire’s Amendment” to the Bipartisan Campaign Reform Act); Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011) (invalidating a provision of Arizona’s public financing law); American Tradition Partnership, Inc. v. Bullock (2012) (finding unconstitutional a century-old Montana law prohibiting corporations from making expenditures supporting or opposing candidates); McCutcheon v. Federal Election Commission (2014) (finding that aggregate limits on contributions an individual could give to candidates and political committees in an election cycle violated the First Amendment); and Federal Election Commission v. Ted Cruz for Senate (2022) (striking down a provision by which no more than $250,000 in campaign contributions collected after an election could be used to repay a candidate’s loans to his own campaign). The ruling in Citizens United led directly to the D.C. Circuit’s ruling in SpeechNow v. Federal Election Commission (2010), which held that contributions to super PACs cannot be limited. [↩]
- McCutcheon v. Federal Election Commission, 572 U.S. 185, 208 (2014) (quoting Citizens United, 558 U.S. 310, 359 (2010) ). [↩]
- This reference is to United States v. International Union United Auto Workers, 352 U.S. 567 (1957), a case establishing congressional power to regulate political expenditures by labor unions. [↩]
- Bradley A. Smith, “Politics, Money, and Corruption: The Story of McConnell v. Federal Election Commission,” in Election Law Stories, edited by Joshua A. Douglas and Eugene D. Mazo, 313-57 (2016). [↩]
- See Nathaniel Persily, Robert F. Bauer, and Benjamin L. Ginsberg, Campaign Finance in the United States: Assessing an Era of Fundamental Change (Stanford, CA: Stanford Cyber Policy Center, 2018); Thomas E. Mann and Anthony Corrado, Party Polarization and Campaign Finance (Washington, D.C.: Brookings Institute, 2014). [↩]
- Derrick A. Bell, “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation,” 85 Yale L. J. 470 (1976). [↩]
- See Kevin McMunigal, “Of Causes and Clients: Two Tales of Roe v. Wade,” 47 Hast. L. J. 779-819 (1996); Nan D. Hunter, “Varieties of Constitutional Experience: Democracy and the Marriage Equality Campaign,” 64 UCLA L. Rev. 1662, 1700 (2017). [↩]
