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Tuesday, August 08, 2017

The Geography of Campaign Finance Law

I have just posted my article on the geography of campaign finance law, forthcoming in the Southern California Law Review. The argument in the Article is that a few metropolitan areas dominate contributions to congressional campaigns, and this poses constitutional problems. A few metropolitan areas exercise an outsized influence in shaping candidates for office, the staff for these candidates, the issues these candidates run on, and how these candidates once elected govern. If Congress is to reflect the principle of geographical self-government it was designed to reflect, this poses constitutional problems.

There is currently a case before the Ninth Circuit that raises some of these issues. Alaska has a law that limits out-of-state contributions to candidates for state office. Working with the very talented Ron Fein at Free Speech for People, we have filed an amicus brief in this case expanding on the issues raised in my article.

I will have several posts on these issues in the next few weeks. For now, here is the abstract of the paper:

Constitutional law is committed to a principle of geographic self-government: congressional districts and states are separately located and entitled to select different officials to send to Congress. James Madison explained in The Federalist Papers that checks and balances would only work if different places and their different politics were empowered to compete with and constrain one another. While constitutional law makes place significant for congressional elections, campaign finance law does not. Those with the resources to contribute often and in large amounts to congressional campaigns primarily reside in a few neighborhoods in a few metropolitan areas. Campaign finance law imposes no limitations and minimal disclosure on contributions from these places to other districts and states — places quite different than the ones where contributors reside. The result is that a few metropolitan areas dominate contributions to congressional campaigns.

Campaign finance law thus allows Congress to be controlled by very few places, dramatically undermining geographic self-government. While scholars have devoted substantial attention to other problematic features of money in politics, the geography of campaign finance law is a different constitutional problem justifying different constitutional solutions. This Article considers two types of legal responses: those that focus special attention on where campaign contributions are beginning and those that focus special attention on where campaign contributions are ending. While both types of solutions have their own respective constitutional benefits and negatives, they both share a common insight. Only by making campaign finance law conscious of place can we begin to address the problems of the geography of campaign finance law.

 

Posted by David Fontana on August 8, 2017 at 09:32 AM | Permalink

Comments

1. It's a shame Ossoff lost; his winning would have been a good example for your point.

2. The same compelling interest in a state confining its political contributions to in-state people should also allow it to prohibit campaigning by out-of-staters. A state would be allowed to prohibit out-of-staters from even speaking in favor of a particular candidate or even in favor of a particular political position. If a state's political community is in favor of, say, abortion restrictions, it could prohibit out of state groups from coming in and campaigning for pink sneaker lady.

Could a state ban NPR or Foxnews so as not to allow its political community to be influenced by outside points of view?

Besides for 1st/14th Amendment issues, laws like Alaska's are brushing up against Article IV: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states."

Posted by: biff | Aug 9, 2017 10:51:41 AM

"Campaign finance law imposes no limitations and minimal disclosure on contributions from these places to other districts and states — places quite different than the ones where contributors reside. The result is that a few metropolitan areas dominate contributions to state ballot initiatives.

Campaign finance law thus allows state bills-of-rights to be controlled by very few places, dramatically undermining geographic self-government."

I agree that Bloomberg alone should not be able to get an amendment to Colorado's state constitution passed or defeated. If he made a documentary on gay rights days before Colorado voted on a state amendment about gay rights, he would surely be a criminal--if not for Citizens United guaranteeing basic human rights.

Posted by: Grey Rural Areas in Moral, Kansas | Aug 11, 2017 6:30:13 AM

"Could a country ban Youtube or Facebook so as not to allow the its political community to be influenced by outside points of view?"

I think that would be completely consistent with the U.N. Declaration of Human Rights that only protects intra-national speech and not the right to receive international communications. North Korea has not and will not violate the freedom of speech as North Korea defines it.

Posted by: People's Democratic Republic of North Korea | Aug 11, 2017 6:49:22 AM

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