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Options for continued reform of money in politics: Citizens United is not the end.


For those concerned with the pressing matter of the influence of money on politics, the 5-4 Citizens United (1) decision was a grave disappointment. (2) Citizens United approved corporations' rights to make independent political expenditures as a matter of First Amendment law. (3) Before Citizens United, corporations were not permitted, at the federal level and in about half the states, to finance electioneering communications. (4) Corporations could make limited political expenditures or fund "issue ads," which could not overtly advocate for the election or defeat of a specific candidate, even if these ads made it clear to the listener which candidate was supported. But they could do so only through political action committees ("PACs"). (5) Citizens United, however, permits corporations to make unlimited independent political expenditures explicitly in support of, or in opposition to, individual candidates. (6)

Citizens United and related cases (7) have led to unfortunate law as well as to psychological impetus resulting in extraordinary spending, especially by individuals. (8) Much of the actual increase in spending after the Citizens United cases has not been from publicly traded for-profit corporations or their PACs, as many feared would happen. (9) Instead, much of it has been from individuals, often through various routes that hide their identity, even though they had (cumbersome) ways of making political expenditures supporting individual candidates in the past. (10) The much-increased spending by individuals was undoubtedly spurred by a belief or sense that the Citizens United cases reflect the Supreme Court's endorsement of a virtual free-for-all for those of great means. (11) And, indeed, Justice Kennedy restricted the concept that "corruption," the justification relied upon in past Court decisions to limit political spending, cannot apply to "independent expenditures" in the absence of an overt quid pro quo, thus eviscerating a long history of broader interpretation of the justification for regulation of campaign finance. (12)

In the post-Citizens United campaign finance world, several major problems have been posed and exacerbated. Wealthy donors are able to exert greater influence in elections, which creates a greater potential for corruption. (13) The rise of "dark money" also makes accountability impossible. (14) Additionally, even in the absence of corruption, it is now even more difficult for average citizens to be heard or to run for office, thus allowing the interests of wealthy donors to distort policy priorities. (15)

The Citizens United cases, however, are not the end of campaign finance reform in the United States. (16) In fact, nearly all aspects of campaign finance reform remain, technically speaking, unaffected by the Citizens United cases, notwithstanding the many deficiencies in the current state of campaign finance law. (17) This includes the failure of the Congress, the Federal Election Commission ("FEC"), and the Internal Revenue Service ("IRS") to enact laws and rules (and police them) on disclosing permissible spending by 501(c)(4)s and coordinated spending. (18) And, of course, there remains the possibility that the Supreme Court will at some point overrule or limit the reach of Citizens United.

This article describes campaign finance reforms that remain viable after Citizens United, in the absence of a reversal of that case. These reforms include: (1) public financing; (2) preventing "coordinated" expenditures; (3) addressing defects in disclosure regimes and "dark money;" (4) contribution limits; and (5) effective enforcement. Reform in each of these areas can help ensure that average citizens' voices are not drowned out by moneyed interests that fund political campaigns. This article concludes that, among these potential reforms, reformers should prioritize establishing public funding programs--with the caveat that those programs must include effective enforcement mechanisms, which are vital to the success of any reform effort. At this time, reformers should also focus their efforts on the state and local levels, where opportunities for reform appear to be more promising than at the federal level. (19) Additionally, while reform efforts in all branches of government are desperately needed, concentrating on judicial elections in states that have them will be the strategy most likely to win reforms in the short term. (20)


A. Public Funding Programs to Increase Small Donor Influence--Unaffected by Citizens United

* All levels of government should establish public funding programs;

* Public funding should be contingent on the recipient's agreement to stipulated conditions, such as participation in public debates and limits on contributions from other sources; and

* Laws establishing public funds programs should protect campaign finance agencies' budgets as well as the availability of public funding for candidates.

1. Types of Public Funding

Among the most important words for reformers in the field of money and politics that have been uttered by the current United States Supreme Court are those of Chief Justice Roberts in Arizona Free Enterprise (which post-dates Citizens United), (21) explaining that "governments 'may engage in public financing of election campaigns' and that doing so can further 'significant governmental interes[s],' such as the state interest in preventing corruption." (22) Arizona Free Enterprise thus affirms the constitutionality of matching funds and other public funding programs, (23) arguably the most important aspect of campaign finance reform. There are several forms of public funding programs, including: (a) matching funds; (b) "clean elections;" (c) tax rebates and credits; and (d) vouchers. (24)

a. Matching Funds

The matching funds model is a system by which the government provides matching funds for small private contributions that candidates collect. (25) Candidates voluntarily opt into these systems. (26) In some jurisdictions as much as $6 in public money matches $1 for up to $175 in private donations. (27) In order to demonstrate that the candidate has some public support, candidates must first collect a certain amount in private funds from small contributions before they are eligible to receive public funding. (28)

There are several reasons to prefer the matching model, including a record of high participation in matching programs by candidates and incentives for small donors to make contributions throughout the campaign period. (29) Small donors thus have an opportunity for meaningful participation. (30) There is also evidence that has analyzed how the war chests of candidates in comparable districts compare when there is a matching system available and when there is not. (31) When a candidate participates in a matching system, the small contributions in combination with the public matching funds he or she receives can generate a very substantial proportion of his or her overall funding, and thus are extremely meaningful to the candidate. (32) These participating candidates are less dependent on large contributions from wealthy donors. (33) Where no such matching system exists for otherwise equivalent campaigns, the result is a war chest that relies heavily on high-end donors to the exclusion of "average" voters. (34) Making it easier for citizens with limited means to contribute to political campaigns may also encourage other civic behavior, including voting. (35)

Numerous states and local governments have experimented with programs that match private citizens' contributions. For example, New York City, (36) Los Angeles, (37) and Tucson, Arizona (38) each have matching funds programs in place. A federal matching funds program, known as the Government by the People Act, (39) was proposed in Congress in 2014. (40) That bill was supported by many civic groups (41) and had 160 co-sponsors in the House, including one Republican co-sponsor. (42)

b. Clean Elections

"Clean elections" programs provide a flat grant that represents all or most of the funding that is permitted for election spending for the candidates who choose to join these programs. (43) Like matching programs, candidates typically must demonstrate their public support by collecting a certain number of small donations in order to qualify for public funding. (44) Maine was one of the first states to implement a clean elections program. (45) Other states, such as Connecticut (46) and Arizona, (47) have followed Maine's example. Although the Arizona Free Enterprise case significantly weakened Maine's regime (and others like it) by undermining the states' ability to provide escalating public funds for candidates who face high-spending opponents, (48) Maine voters recently approved measures to reinvigorate Maine's program by increasing the amount of public funding available and raising spending limits for publicly funded candidates. (49)

c. Tax Rebates and Credits

Tax rebates or credits for small contributions can be made available to donors who apply to the relevant agency for a refund. (50) Tax credits and tax refunds for campaign contributions have been used in several states, including Arkansas (51) and Minnesota. (52) For example, in Minnesota a taxpayer may claim a tax refund of up to $50 for qualified contributions. (53) Republican John Pudner of Alabama, whose "Take Back the Republic" organization supports campaign finance reform from a conservative viewpoint, favors tax credits. (54) Former Wisconsin Republican Congressman Tom Petri favors tax credits and tax deductions. (55)

Tax credits, however, may favor only those individuals who earn enough to pay income taxes, unless the credits are properly structured. (56) If a credit may only be used to offset a taxpayer's existing tax liability, taxpayers who do not earn enough to be subject to income taxation will receive no benefit from the credit. (57) To avoid this inequity, the equivalent of an available tax credit should be paid to the taxpayer to the extent the credit exceeds the taxpayer's tax liability. (58)

d. Vouchers

Vouchers may be given by the government for citizens to contribute to a candidate or party. (59) In late 2015, Seattle voters approved a new voucher initiative that will make Seattle "the first city in the U.S. to give public money to citizens to encourage civic participation in campaign financing." (60) Beginning in 2017, Seattle voters will receive four $25 vouchers to give to candidates of their choice. Candidates must agree to comply with certain restrictions in order to be eligible to use the vouchers. (61)

One benefit of voucher systems (in contrast to matching systems) is that they make it possible for voters to express their political views, even if they do not have the financial resources to make any contribution at all. (62) Voucher systems can create very complex scenarios that might undermine their usefulness, however. One concern about this model is that it could lead to citizens "selling" their vouchers to other people. (63) These others could then use the vouchers for candidates they favor even if the original owner of the vouchers might have chosen a different candidate, but is willing to give up his or her voucher for payment or otherwise. (64)

2. Establishing Public Funding Programs

Since Citizens United has made it more difficult to cap excessive political spending, reformers should instead focus on establishing public funding programs, such as those mentioned above, to move more of the locus of funding resources from a high-end "donor class" to a larger number of small donors. The importance of providing public funds through any of these models cannot be overstated. (65) First, they can in fact give small donors' contributions a much greater presence in candidates' war chests, thus enhancing the influence of small donors. (66) As stated above, small donor matching funds also attract participants into the political process who are otherwise less likely to be active. (67) Second, matching programs can liberate candidates to a significant degree from the job of raising money, allowing candidates to concentrate on policy and on engaging with their potential constituents on policy, not just asking them for donations. (68) Third, they assist candidates who do take office in carrying out their responsibilities as office-holders by reducing the importance of pleasing large donors. (69)

In addition, it has been suggested that when small donors contribute, they may also exhibit other kinds of citizen engagement--other than making campaign contributions--that is healthy for democracy, such as volunteering, involvement in campaigns (in addition to giving contributions), and voting. (70) These are tremendous achievements for campaign finance reform. And in light of the Supreme Court's explicit recognition of public funding for the purpose (at the least) of curbing corruption, public funding programs present a ripe area for reform. (71) Public funding programs may also impose certain conditions on a candidate's acceptance of public funding, including contribution limits, expenditure limits, and participation in mandatory debates. (72)

Today, thirteen state governments (73) have public funding programs in place. Although ultimately unsuccessful, vibrant efforts to enact reform measures in New York State in 2014 and later (74) suggest continuing action in the foreseeable future. Public funding programs have also been established by local governments: for example, in 2014, Maryland's Montgomery County passed the first matching funds program since Citizens United. (75) Maryland's statewide public funding program has been revitalized and the current Republican Governor, Larry Hogan, was significantly assisted by his participation in it during the fall 2014 election. (76) A Chicago municipal advisory referendum overwhelmingly approved a public matching funds proposal for a vote. (77)

However difficult it is to pass public financing through legislatures, it must be remembered: the cost of these programs is minuscule notwithstanding many claims to the contrary, and the benefits are incalculable. New York City's Republican Mayor Rudolph Giuliani stated in 1991: "The amount of money [distributed through the New York City public funding program] is, in the budget of New York City...infinitesimal. You can't find it. It's a percentage of a percentage of a percentage of a percentage." (78)

In New York State, a small-donor matching system of public financing might cost "about $41.4 million per year over the course of four years, or $2.12 per New Yorker per year." (79) Even at a cost of $42.7 million, that would only be 0.003% of the state budget. (80) Administrative and enforcement costs would add another $17 to $21 million per year, for a total annual cost of about $60 million." (81) Maine's campaign financing system draws only $2 million from the state's general fund each year at an estimated cost of $2 per year for Maine residents. (82) In Arizona, the Citizens' Clean Elections Commission paid out over $5.3 million to candidates in 2014, without drawing from the state's general fund at all. (83) (The funding for Arizona's program comes primarily from a ten percent surcharge on civil penalties and criminal fines. (84) ) In the 2014 election, gubernatorial candidates received $753,616 for the primary election, and candidates for the position of corporate commissioner received $97,620 for the primary election and $146,430 for the general election. (85) Legislative candidates received $15,253 for the primary election and $22,880 for the general election. (86)

Funding for public funding programs typically comes from tax check-offs, tax add-ons, and general funds. (87) Reformers, however, should push to ensure that campaign finance programs have more secure funding. In New York City, for example, public funds for candidates and for funding the agency are protected under the New York City Charter. (88)

B. Regulation of Political Expenditures by Corporations and

Unions--Largely Unaffected by Citizens United

* The independence of political expenditures should be policed to determine the legality of fundraising activities;

* The burden should be on candidates and PACs to prove that spending is not "coordinated" whenever certain factors are present (e.g., a PAC uses language identical to candidates' materials or photos from the candidate's campaign materials);

* Individuals who have close family or working relationships with a candidate should be precluded from making independent expenditures on behalf of that candidate for a specified period of time (similar to revolving door ethics rules in Congress); and

* The FEC should tighten the definition of "foreign corporation" so that non-citizens do not have influence over American elections.

1. Coordination

Pre-Citizens United, as mentioned above, corporations were not permitted, at the federal level and in about half the states, to finance independent expenditures or certain other electioneering communications. (89) Currently, it would seem that the action of the Court, combined with the inaction of the FEC, has rendered these expenditures entirely unlimited. (90) It is important to remember, however, that, as emphasized by the Supreme Court, expenditures must in fact be "independent," or "uncoordinated," and this is an area that remains to be fully exploited. (91)

The definition of what is either "independent" or "coordinated" spending is crucial to effective campaign finance regulation. (92) Explaining the meaning of its regulations on "coordination," the FEC has stated:
When an individual or political committee pays for a communication that
is coordinated with a candidate or party committee, the communication
is considered an in-kind contribution to that candidate or party
committee and is subject to the limits, prohibitions and reporting
requirements of the federal campaign finance law. In general, a
payment for a communication is "coordinated" if it is made in
cooperation, consultation or concert with, or at the request or
suggestion of, a candidate, a candidate's authorized committee or their
agents, or a political party committee or its agents. (93)

Notwithstanding the above, the FEC has failed to enforce its regulations on independent spending. (94) No matter what regime is in place, regulation of independent expenditures to prevent coordination is meaningless without a strong enforcement mechanism. And the definitions of "independent" and "coordinated" seem to become, in practice, murkier every day. (95)

Part of the problem is that the FEC regulations cover expenditures, but not fundraising. For example, the FEC regulations permit a candidate to appear at an event held by an "independent" entity and to solicit funding at that event as long as the candidate abides by the federal solicitation limit and personally makes no specific "ask" for contributions. (96) Some states and localities, however, have better addressed the issue of preventing coordination through fundraising. The Brennan Center testified on the (ultimately successful) Philadelphia initiative that:
Philadelphia would not be the first jurisdiction to enact a rule taking
into account candidate fundraising for an outside group to determine
whether that group's expenditures in the candidate's race are
coordinated. Recently, for example, Minnesota's Campaign Finance and
Public Disclosure Board determined that "fundraising for, or promotion
of, an [independent expenditure committee] constitutes cooperation that
destroys the independence of any subsequent expenditures
affect the Candidate's election." Similarly, under Connecticut law as
interpreted by its State Elections Enforcement Commission, candidate
fundraising for an outside group can be evidence of coordination. (97)

Another approach to help prevent coordinated spending, in effect in New York City, is to define "coordination" so that when certain criteria are met, political spending is presumed to be coordinated with a campaign. (98) Of course the campaign has the opportunity to rebut the rule's presumption. (99)

Another difficulty in preventing coordinated spending is that many super PACs are run by individuals closely related to the candidate. (100) Super PACs for Republicans, like Ben Carson and Jeb Bush, were advised by friends and "allies who intimately know their candidate's thinking." (101) Similarly, a number of close friends and supporters of Hillary Clinton were deeply involved in running a super PAC that supported her presidential nomination. (102) This difficulty could be reduced to an extent by precluding individuals who have close family or working relationships with the candidate from making independent expenditures or running super PACs on behalf of the candidate for a specified period of time (similar to revolving door ethics rules in Congress). (103)

One of the most comprehensive proposals to combat coordinated spending has been Democracy 21's "Model Bill." (104) The Model Bill would deem a super PAC to be "coordinated" with a candidate if the candidate, the candidate's agents, advisers, or family has been involved in establishing, managing, advising, or fundraising for the super PAC. (105)

2. Foreign Interests

Another concern is that corporations controlled by foreign interests could be making political expenditures. (106) Ways must be found to ensure that existing prohibitions on contributions from foreign nationals are not undermined by corporate campaign spending. (107) This problem is an issue of particular concern to "Take Back Our Republic," an organization that seeks to reform campaign finances consistent with conservative principles. (108) This could be addressed by having the FEC define a "foreign corporation" (which is already forbidden by law to make political expenditures) as one the majority of whose board members are non-citizens or which has non-citizen shareholders who have a controlling interest in the corporation. (109) As a result, corporations would be prohibited by FEC regulation from engaging in political spending. (110)

C. Enhanced Disclosure and Regulation of All Political Spending--Unaffected by Citizens United

* The IRS should conform its regulation on 501(c)(4) organization political spending to the law, to prevent opportunities for "dark money" spending;

* Disclosure systems should encompass all political spending activity, including "independent" expenditures;

* Congress and the states should require campaign advertisements to be "approved" and attributed to the donor on the face of the advertisements;

* Comprehensive public disclosure should be adopted that would allow all citizens to see the actual sources of private funding for elections, regardless of the legal form of the spender;

* The Securities and Exchange Commission ("SEC") should require detailed information on corporate political spending; and

* If not accomplished by law, non-governmental entities (and stockholder groups) should work to persuade corporations to disclose their political spending and to set up accountability structures for their political expenditures.

1. Dark Money

Disclosure is a necessary (but insufficient) condition of meaningful campaign finance reform. (111) Disclosure assists reform, but is not itself a solution to the deficiencies in campaign finance regimes. (112) As Professor Lawrence Lessig has said, comparing campaign finance disclosure to the video stream of the BP oil spill: "The point is to stop the guck from pouring into the Gulf, not [merely] to see it more clearly." (113) Nevertheless, disclosure enhances: enforcement of campaign finance laws and regulations by exposing to the public who gives what to whom. It also permits researchers, including those at enforcement agencies, to study important matters of concern to a democracy, such as the relationships among donors and recipients of funding (including across jurisdictions); relationships between funding and the steps toward passage or rejection of legislation; and connections between money spent and voting. (114)

In general, the focus on disclosure has been on direct contributions to campaigns. (115) At the federal level, disclosure is required for contributions of $200 or more. (116) After Citizens United, however, the focus on disclosure must also be directed toward "independent" expenditures that are now permitted to be made in unlimited amounts by corporations. (117) Independent spending, in particular, should be regulated to avoid misuse of tax-deductible funds. (118)

Significant--but reparable--loopholes permit tax-exempt 501(c)(4) entities to make political expenditures and circumvent federal disclosure requirements. (119) This is a result of the IRS' administration of the Internal Revenue Code, whereby (120) a critical IRS regulation is not faithful to the statute to which it pertains. (121) The Internal Revenue Code permits 501(c)(4) non-profit organizations, or "civic leagues" that are "operated exclusively for the promotion of social welfare" and whose net earnings "are devoted exclusively to charitable, educational, or recreational purposes[]" to function as tax-exempt organizations. (122) These tax-exempt organizations are not required under law to disclose the names of donors who give them money, and there is no limit on the amount that a donor can give. (123)

One would think that tax-exempt, charitable, educational, and recreational organizations would have nothing to do with political campaigns. The regulations promulgated by the IRS pursuant to Section 501(c)(4), however, significantly depart from the statute, providing that "[a]n organization is operated exclusively for the promotion of social welfare if it is primarily engaged in promoting in some way the common good and general welfare of the people of the community." (124) And groups that have obtained 501(c)(4) status have interpreted the "primary activity" requirement to refer to fifty-one percent of their activity, leaving them free to spend forty-nine percent of their total expenditures on political campaign activities without losing tax-exempt status. (125) The IRS has not challenged this practice.

From time to time the IRS has considered changing the regulation to bring it into line with the statute, but it has never done so. (126) The results are staggering. In the 2012 election cycle, 501(c)(4) tax-exempt organizations spent over $257 million on political campaigns. (127) The IRS currently has a petition before it for a change in the rule. (128) Only strong citizen activism on this subject can bring about correction of this absurd misuse of language. (129)

Meanwhile, from a different angle, the "Bright Lines Project" ("Project") created by Public Citizen has proposed guidance for an IRS rulemaking underway for 501(c)(4) and other tax-exempt organizations on political spending. (130) The Project proposes that the IRS give detailed guidance to define "political activity" (or "political intervention") that will clarify comprehensively what is and is not legitimate spending by 501(c)(4) organizations under the existing IRS regulations. (131) As the Project states, it is attempting to establish "a method for judging cases of potential political intervention, accompanied by definitions that can capture more or less activity, depending on how one wants to draw lines that encourage free speech while discouraging tax abuse." (132) The rulemaking--and the Project's submission--may at least lead to some reasonable rules governing political activity by tax-exempt organizations. Laudable as the Project's plan may be, the current law is already clear enough, in its description of tax-exempt organizations, to prevent such political activity entirely.

The federal government also currently requires that campaign advertisements include "adequate notice of the identity of the person or political committee that paid for and, where required, that authorized the communication." (133) The attribution is often, however, simply the name of an innocuous-sounding organization, say, "Americans for Apple Pie," while the actual donors remain anonymous. (134) Avoiding attribution is easily accomplished by the use of shell corporations or non-profit organizations as intermediaries to shield individual donors' identities by having the shell corporations make political donations on behalf of the individual donors. (135) Under current law, if a donor contributes to a shell corporation, which then donates that money to a super PAC, the super PAC must disclose only the name of the shell corporation--allowing the original donor to remain anonymous. (136)

Disclosure of innocuous-sounding organizational spending tells the public nothing. (137) Meaningful disclosure would reveal who is behind the spending. (138) The Democracy Is Strengthened by Casting Light on Spending in Elections ("DISCLOSE") Act of 2014 is an example of a comprehensive bill that has been proposed at the federal level to establish additional disclosure requirements. (139) If passed, the DISCLOSE Act would reveal the actual sources of political spending. The act would require individuals and organizations that transfer more than $50,000 to other organizations that engage in campaign spending to disclose the original donors to the recipients, who in turn would be required to disclose those donors in the recipients' own disclosure reports. (140) California, (141) Maryland, (142) and Connecticut (143) are currently among national leaders in requiring disclosure of the ultimate donors to organizations that spend on political activities. (144) In April 2015, Montana passed "sweeping" disclosure laws, which address independent expenditures and dark money; (145) it remains to be seen how successfully the laws will be implemented. New York City has comprehensive independent expenditure disclosure laws, which require organizations that make independent expenditures to disclose the names of their owners and CEOs as well as any contributors who give more than $50,000--including the names of owners, executive officers, and board members of any contributor organization. (146)

2. Other Disclosure Issues

The SEC is another body with the power to increase political spending disclosure. (147) The Brennan Center for Justice, among many others, has advocated for SEC "regulations requiring public corporations to disclose all of their political expenditures on a periodic basis." (148) Another organization, Demos, has stated:
[The SEC] has received more than one million public comments, the most
in agency history, on a proposed rule to require publicly traded
corporations to disclose their political spending. The SEC has the
authority and the responsibility to promulgate this rule for the
protection of investors and in the public interest in response [to] the
newly allowed corporate political spending resulting from Citizens
United. (149)

According to the Corporate Reform Coalition, "holding management accountable and ensuring that political spending decisions are made transparently and in pursuit of sound business is important for both the market and for democracy." (150)

An SEC regulation would have the additional benefit of replacing ad hoc aggregations of information obtained through inconsistent state and federal disclosure regimes--which may be difficult, or even impossible, to compare--with a uniform standard for disclosure that would be readily available on a dependable, national database. (151) Different state and federal agencies that receive disclosed information each have different disclosure regimes, different accessibility, and, perhaps most important, different levels of substantive information. (152) In addition, notwithstanding our technological ability to make disclosure almost instantaneous, much of the disclosure becomes available so long after the fact that it renders the information virtually useless to the public. (153) An SEC regulation could alleviate some of these obstacles to meaningful and timely disclosure by creating a uniform standard for disclosure and providing a single database from which the public can get access to all available information.

Non-governmental approaches are also available to encourage disclosure of corporate political expenditures. The Center for Public Accountability ("CPA"), for example, has been successful in persuading a number of corporations to disclose their political spending and to put an accountability structure in place that must pass on any political spending considered by the corporation. (154) The CPA publishes information provided by the corporations, describes corporations that are leaders in disclosure and accountability, and rates corporations by various criteria, including what their policies and accountability structures are, what they disclose, and how accessible the information is to the public. (155) The CPA-Zicklin Index measures the extent to which companies adopt political disclosure policies, examining the companies in the S&P 500. (156) The 2015 index found that the trend among much of this group is toward increased disclosure. (157) While there is still a long way to go--some companies' records are abysmal--the progress being made is encouraging. (158)

The best asset we currently have for detailed, complete disclosure at the federal level is the Center for Responsive Politics' "Error! Hyperlink reference not valid. It acts as "a clearinghouse for data and analysis on multiple aspects of money in politics--including the independent interest groups, such as super PACs and political nonprofits, flooding politics with outside spending, federal lobbying, Washington's 'revolving door' and the personal finances of members of Congress, the president and other officials." (160)

The best source for detailed, complete disclosure at the state level is the National Institute on Money in State Politics' ""--also not a government agency. (161) It "compil[es] comprehensive donor information from all [fifty] state disclosure agencies [and] form[s] that data into one unique database with industry codes and unique donor identifiers, and provid[es] unparalleled access to that data to journalists, scholars, advocates, and the public." (162) For more than a decade, the institute has worked with local agencies to upgrade their disclosure systems. (163) It has also worked with journalists to inform their investigative reporting on money and politics, as well as with scholars and lawyers involved in analyses and court battles over campaign finance reform and disclosure. (164)
Comparing political donations across state boundaries and election
cycles [can] provide [] powerful insights into how policy agendas are
set, how donors court incumbents and winners to ensure [that] they have
a seat at the policy table, and even how legislation is shepherded
through legislative committees. The Institute leads the way with
[twenty-first] century transparency standards that will transform how
citizens hold elected officials accountable. (165)

Other not-for-profits like MapLight in California and Wisconsin (166) also make state-level disclosure information more accessible to the public. MapLight attempts to operate not only as a centralized disclosure resource, but also links campaign contributions to lobbying and even legislators' votes. (167) The Sunlight Foundation, another valuable contributor to public information on campaign finance, provides useful guidance about best practices for data collection. (168)

D. Contribution Limits--Unaffected by Citizens United

* Public funding programs should restrict contributions so that the predominant amount received by a publicly funded candidate is from within the jurisdiction in which the candidate is running;

* There should be a requirement in any public funding program that public funds match only contributions made from donors who are residents of the candidate's state; and

* Stricter contribution limits should be established to limit what candidates may accept from donors.

1. Aggregate Contributions by Individuals and Contributions from Foreign Nationals

McCutcheon allows virtually unlimited influence for high-end donors by undermining the government's ability to limit individuals' aggregate political contributions. (169) By voiding federal limits on an individual's aggregate contributions to candidates, party committees, and PACs, McCutcheon gave large donors unfettered ability to spread their contributions across the nation to help elect their favored candidates and influence government policy in a way that most Americans cannot. (170)

McCutcheon allows an out-of-state contributor to make donations to multiple candidates for multiple offices. (171) This could very likely result in alignments of elected officials with donors who do not reside in their jurisdiction. (172) To mitigate that concern, states should restrict the contributions that candidates may accept so that the predominant amount received by the candidate is from within the state in which the candidate is running for local office. (173) Although the Supreme Court has not directly addressed "whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation's political process[,]" (174) the Court has affirmed an opinion by the D.C. Circuit permitting federal bans on soft money campaign contributions by non-U.S. citizens. (175) It is yet to be seen whether a state could permissibly prohibit a non-resident U.S. citizen from making contributions to a state or local campaign. But certainly, states and local governments can limit or proscribe publicly financed candidates' receipt of contributions from outside of their jurisdictions. Connecticut, for example, requires publicly financed candidates, who must raise a threshold amount of private funding in order to qualify for Connecticut's program, to raise ninety percent of that funding from within the state. (176) New York City has similar requirements. (177) Matching programs should also limit eligibility so that only contributions made from within the candidate's state are matched with public funds.

2. Contributions to an Individual Candidate

McCutcheon and other cases do not preclude limits on the amount of contributions that individual candidates may accept, as long as they are not unconstitutionally low. (178) Many would argue that current federal contribution limits are quite high. (179) Individual limits are $2,700 per candidate/committee per election, and $33,400 per national party committee per calendar year. (180) And, as stated above, there are now no aggregate limits on how much in contributions donors may make throughout the country. (181) Passage of federal legislation known as "CRomnibus" has effectively raised the limits on individual contributions to national party committees from $33,400 to $334,000. (182) In addition to the original $33,400 limit for contributions to national party committees, CRomnibus now permits individuals to make additional contributions of $100,200 to each of three segregated accounts that the party committees may establish to support: (1) conventions; (2) facilities; and (3) legal matters such as recounts. (183) For context, the median yearly average family income in 2014 in the U.S. was $53,657. (184)

Some states and localities also have overly generous contribution limits, exceeding those at the federal level. For example, California has a limit of $28,200 for gubernatorial candidates per election. (185) Of New York State's various too-high limits, the most extreme is the $44,000 that statewide candidates may receive for the general election. (186) What's more, Democratic and Republican statewide candidates in New York State are permitted to receive more money in additional donations for the primary election alone than their counterparts in many other states can receive in an entire election cycle. (187) For example, Ohio allows individual contributions of up to $12,532.34 in the primary and general elections. (188) In a change that took effect just in 2015, Maryland raised its contribution limits from $4,000 to $6,000 per election. (189) Alabama, Iowa, Missouri, Nebraska, North Dakota, Oregon, Texas, Utah, and Virginia have no contribution limits at all. (190)

Other states have corporate limits, but have no limits for individuals. (191) For example, Indiana and Mississippi have limits for corporate contributions, but not for individuals or PACs. (192) Pennsylvania prohibits corporate contributions, but for PACs and individuals there are no limits. (193) South Dakota prohibits corporate contributions and has individual limits, but has no limits on PACs. (194)

Perhaps most bizarre of all is a quirk in Illinois law nullifying contribution limits for all candidates once a candidate donates $250,000 or more to his or her own campaign. (195) Critics have compared the ensuing free-for-all to the '"wild west' era of unregulated political contributions, when money was thrown around like confetti." (196) Candidates have taken advantage of this loophole in two recent high-profile elections. In the 2014 cycle, Republican gubernatorial candidate Bruce Rauner, independently wealthy from his years in private equity, donated more than $6.5 million to his own campaign. (197) By blowing past the $250,000 trigger, he also cleared the way for a staggering $2.5 million donation from Illinois' richest man. (198) Rauner heavily outspent defeated incumbent Pat Quinn to win the governorship. (199) In Chicago's 2015 mayoral election, another candidate crossed a similar threshold of $100,000 for local elections. William J. Kelly, who was a little-known contender, loaned the money to his own campaign--and in doing so, lifted donation limits for all the other candidates in the race. (200) This ultimately allowed incumbent Rahm Emanuel to tap his large network of wealthy donors. (201) After a bruising runoff election, Emanuel secured another term in 2015. (202)

Some jurisdictions have allowed particular types of entities to make greater contributions than others. For example, small-donor PACs are a specific type of political committee that accepts only small contributions--e.g., a maximum of $50--from natural persons. (203) These PACs have been conceived to encourage small donors to pool their funding and thus have a greater say in elections. (204) In order to achieve that goal, small-donor PACs are permitted to donate more money to candidates and parties than individuals or other types of PACs. (205) Colorado has had success in establishing such a regime. (206) Arkansas, however, has seen its small-donor PAC law struck down by the Eighth Circuit as a violation of the equal protection clause. (207) It is not yet clear whether the Eighth Circuit's decision will be followed in other circuits.

3. Government Contracts

Conflicts of interest should not be permitted to determine public policy or practice arising from "doing business" contributions from contractors and contributions from lobbyists. Federal conflicts of interest laws (208) limit gifts and activities paid for by those with business before the government. Limits on "pay to play," or "doing business," contributions are currently inadequate at the federal level. (209) The FEC is currently considering regulatory changes on this subject. (210)

Positive change could also be made by executive order of the president, prohibiting contributions to federal campaigns by those who have contracts with the government and have managed to evade existing restrictions, by requiring full disclosure by these entities of all their political spending. (211) States should bring their lobbying regulations up to similar standards.

E. Effective, Non-Partisan Enforcement of Existing (and Future) Laws--Unaffected by Citizens United

* State and local enforcement agencies should be non-partisan, and the president should nominate distinguished FEC commissioners from each party who are not beholden to their respective parties and are committed to enforcing the law;

* Adequate funding for enforcement agencies must be provided, as well as a system to protect public funding; and

* Agencies at all levels should have the power to audit and impose strict penalties on campaigns and contributors who violate the law and regulations.

Enforcement is an essential aspect of a successful campaign finance regime. (212) To ensure that elections are fair, candidates, office-holders, and their campaigns must be held accountable when the rules are broken. Effective enforcement of campaign finance regulation requires: (1) a non-partisan enforcement agency; (2) an adequate and protected budget and sufficient funds for qualifying candidates; (3) meaningful enforcement powers; (4) an aggressive enforcement policy; (5) meaningful disclosure; and (6) periodic program evaluations.

1. Non-Partisan Campaign Finance Enforcement Agency

The culture of an agency should reflect even-handed enforcement of the law without regard to partisan affiliation. This means having a tie-breaking mechanism, and thus an uneven number of members, who should serve staggered terms and have a mandate to operate in a non-partisan manner. (213) Third-party voters must also be a part of the system. (214) Rather than a bi-partisan agency, in which the model is for Republicans and Democrats to police each other, the best model has proven to be a non-partisan enforcement agency. New York City, for example, has a long history of non-partisan decision-making--nearly always unanimous--that ensures that the public is protected while providing public funds to reduce candidates' reliance on large donors. (215) In November 2015, Wisconsin--once a model for campaign finance agencies--further weakened its already diminished system by changing its non-partisan board into a partisan one. (216)

The FEC has suffered from partisan deadlock and, even more important, plain inaction, leading to minimal penalties for campaign finance violations. (217) The FEC is evenly divided between Republicans and Democrats, which allows each party to protect itself from enforcement. (218) Both parties seem to believe that they benefit from a lack of oversight. (219) FEC Commissioner and former Chairwoman, Ann Ravel, has criticized Republican commissioners for refusing "to enforce the law, except in the most obvious cases." (220) According to one FEC expert with the Campaign Legal Center, it is especially difficult for the FEC to enforce the law because the three Republican commissioners tend to believe that "campaign finance laws are largely unconstitutional" and frequently vote against enforcement actions. (221)

As matters stand, the president nominates all six commissioners, subject to confirmation by the Senate. (222) As a practical matter, however, leaders of the Democratic and Republican Parties each supply their three candidates to be nominated by the president in deference to the party leaders and then the nominees are rubber-stamped by the Senate.

Of the reforms in this report, only one at the federal level has the dual distinction of being both the easiest to put in motion and of having the most potential for immediate effect. At the time of this writing, five of the six FEC commissioners are serving past their terms. (223) There is nothing to stop the president from putting forward the names of four highly respected Democrats and Republicans, without consultation with the parties, who have served in positions of responsibility with great distinction and who are not beholden to their respective parties on campaign finance issues. (224) The Senate then would have to decide whether to embarrass itself by refusing to confirm clearly qualified and well-known figures or to go forward, as it should, with confirmations of people who will in fact enforce existing law; although the potential for embarrassment has not as of late appeared to motivate the U.S. Senate. (225)

2. Adequate and Protected Budget

Enforcement agencies must also have sufficient funding to sustain adequate financing for candidates and to guarantee the resources that agencies need to ensure compliance with applicable rules. Many agencies suffer from lack of resources. (226) Programs such as those in Minnesota (227) and Wisconsin, (228) have suffered from being unfunded or defunded. Under-funding has also been a major factor in discouraging participation in the federal presidential public financing system. (229) Although for many years the presidential public financing had been a huge success, used by both Democrats and Republicans (including President Reagan), the amount of funding available to candidates is now inadequate. (230) Federal public funding comes from a tax check-off system that requires taxpayers to choose to allocate $3 of their taxes for public campaign financing. (231) This has proven to be an inadequate framework for at least five reasons. First, taxpayers do not realize that the check-off does not increase their tax liability, so they are less inclined to check off the box. (232) Second, taxpayers are typically uninformed about the significant but complex value of public funding programs. (233) Third, it is unusual to permit taxpayers to micro-manage government expenditures by using tax check-offs for funding individual public programs. (234) Fourth, the check-off has the effect of a quasi-referendum on campaign finance reform every year. (235) Fifth, the taxpayer check-off system has never sufficed to fund any campaign finance program in its entirety. (236)

Public funding programs should be securely backed up by the government's general fund. (237) Tying an agency's budget to the budget of another agency that tends to be well-funded is one way to ensure adequate resources. (238) In addition, local charters and laws can provide protection to these agencies and the public funding available to candidates who qualify for it. For example, the budget of the New York City Campaign Finance Board is provided for by the New York City Charter. (239)

3. Meaningful Enforcement Powers

An agency's lack of adequate power is another obstacle to effective enforcement. Without subpoena power, the power to audit campaigns, the power to assess meaningful penalties, and the power to go to court to enforce them, a campaign finance agency cannot assure the public that it is receiving accurate disclosure, that contribution limits are being adhered to, or that public money is being spent in accordance with the law. (240) With these powers and a competent audit staff, a campaign agency can prove to be an effective enforcer. (241) One example of a weak enforcement agency is the FEC, which is restricted by law even from performing random audits. (242) Such audits are absolutely necessary in order to ensure compliance with campaign finance laws, including disclosure laws. (243)

4. Aggressive Enforcement Policy

A policy of aggressive enforcement is also vital. The FEC's record for enforcement has deteriorated over time and, as of this writing, it hardly enforces existing law at all. (244) The FEC has assessed far fewer penalties in recent years. (245) This ensures that candidates can generally break the rules with impunity, including coordinating with "independent" spenders. (246) It is particularly disappointing that the FEC has so often chosen either not to come to decisions on the legal interpretation of its own regulations or has interpreted them excessively narrowly. For example, the FEC has read the "independent spending" disclosure rules to require disclosure only when the spending has essentially been earmarked for a particular independent expenditure or electioneering communication. (247)

Congressional committees can hardly claim a better record of looking into campaign finance or ethical violations. (248) In contrast, the Department of Justice has taken some meaningful action on campaign finance violations. (249)

Real-time enforcement--especially in respect to the disbursement of public funds--is also extremely important. Agencies should not shy away from finding violations even during the heat of a campaign. Once the campaign is over, it is often the case that an "empty" organization is left standing with no funds to reimburse the public if monies are owed or penalties are to be assessed. (250) New York City performs real-time auditing, before, during, and after elections and gives virtually instant computerized, searchable public disclosure of campaigns' filings. (251) It also assesses meaningful real-time penalties, including during the campaign period. (252)

5. Meaningful Disclosure

Disclosure is another prerequisite to adequate enforcement of campaign finance laws. Without a detailed, complete disclosure regime that makes disclosed information available in a timely manner, laws are far less likely to have the desired effect for reformers. (253) Ideally, information should be made available on the Internet via a single repository. (254) When a candidate's opponents, the press, and the public are able to examine campaign finance disclosure documents closely, it is more likely that they may bring inconsistencies to the enforcement agency's attention. (255) In this way, the effectiveness of a campaign finance disclosure scheme helps support the agency's enforcement efforts.

6. Ongoing Program Evaluations

Finally, after each election, the public finance agency should be required to review how well the program it administers worked and should report to the public and to the elected officials on successes, failures, and needs for administrative changes and law reform. Otherwise, as we know well from experience, a culture will grow among the regulated community that learns how to find loopholes and exploit them, and the law and regulations will not remain effective. (256)


A. Concentrate on Public Funding

Adopting public financing in campaigns at every level of government is the most effective way to give the least wealthy and least heard citizens an important avenue through which to exert their own influence. (257) Particularly, matching funds programs, backed by meaningful enforcement of campaign finance laws, is very likely the single most important reform that can be enacted. (258) Better disclosure and contribution limits should also be pursued, but, realistically, they do not alone shift the balance of power away from corporations and the wealthy in the campaign finance arena. Disclosure gives people information, but it does not give them any confidence in government, or greater political power. (259) Contribution limits are laudable as a way of "leveling the playing field," but they are easily circumvented and even the most rigorous changes may easily fail to stem the tide of money that flows in ways that influence our decision-makers. (260) Public funding, however, has been shown to empower smaller contributors, and can easily shift the political mix at relatively small cost to the government. (261)

Matching small donations has the greatest potential to enhance the value of small contributions, and hence to give average voters a meaningful presence in candidates' war chests. (262) Matching funds for small donations, in turn, provides incentives for candidates to take into account the needs and opinions of those who cannot make the largest contributions, (263) thus democratizing the campaign process and, consequently, the governing process as well. Public funding programs also, because they are voluntary, may include restrictions on campaign behavior that cannot otherwise by imposed by the government. For example, public funding can be conditioned on participation in public debates, as is the case for citywide participating candidates in New York City and Los Angeles. (264)

But, here again, there are caveats: funding must be adequate and must be accompanied by effective enforcement mechanisms that will ensure that public funds are spent properly and received only by those who are entitled to them under applicable law. Legislative reform must mean something, and without follow-up funding, implementation, and rigorous enforcement, campaign finance reforms may be virtually worthless or worse, resulting in waste of taxpayer funds. Coordination rules must also be strictly enforced so that taxpayers are not merely subsidizing big "outside" fundraising.

Establishing public funding programs is always difficult, but it does carry support across the political spectrum. (265) In fact, public funding programs have helped Democrats, Republicans, and third-party candidates be heard and elected. (266) Although often misunderstood as "a Democrats' issue," many Republicans have been elected with the help of public funding, including the recently elected governor of Maryland and elected officials in Arizona. (267) New York City, a predominantly Democratic jurisdiction, has experienced the election and re-election of a Republican mayor who participated in the city's public finance program as well as an increase in the number of Republican city council members who also participated in public campaign financing. (268)

B. Concentrate on State (Rather than Federal) Efforts

At a time when Congress is routinely deadlocked on whether the federal government should be shut down or its debt service paid, (269) Congress is unlikely to turn its attention to the subject of campaign finance reform any time soon. Even if Congress were functioning normally, there is no indication that leadership has an interest in addressing the subject. The FEC is not enforcing existing laws, much less supporting improvement. (270) Additionally, the Supreme Court is, by any reasonable measure, antagonistic to campaign finance reform. (271) While a constitutional amendment that would overturn Citizens United would be welcome, this is a difficult, long-term effort for those who can manage much-delayed gratification and, if successful, would still require enacting and implementing reform laws. (272)

That said, "fortune favors the prepared." (273) It is therefore important to have draft legislation in hand, as well as the research and thinking that goes behind it. As has been shown in many cases, reform generally comes about as a result of scandal, as when critical reform elements were established through amendments of the Federal Election Campaign Act ("FECA"), spurred by the Nixon campaign's unacceptable campaign practices. (274) Yet, recent Supreme Court rulings have dismissed many rationales for reform, paving the way for corporations, as well as wealthy individuals, to have even more influence on the political scene than they have had already. (275) In this way, the public may come to see the Citizens United cases themselves as a kind of scandal. Thus, continued work on drafting federal reform legislation is appropriate so that when the moment does come for change, reformers are prepared.

Despite poor prospects for reform at the federal level, the Citizens United cases provide a "teachable moment" for states and localities, where, for now, there are the most possibilities for reform. In response to Citizens United, states have demonstrated a willingness to reform local campaign finance laws. For instance, "California, Delaware, Massachusetts, Maryland, Hawaii, Vermont, and North Carolina each passed new disclosure laws" since Citizens United was decided. (276) In addition, voters in Maine have passed a bill to increase the role of "clean" public funding, (277) and North Carolina is "organizing to fight back against cuts to...[its own] public financing program[]." (278) New York State, which "ought to be a leader in the nation" in reforming campaign finance, came close in 2014 and later years to passing a popular Fair Elections Bill, largely modeled on the successful New York City program. (279)

The issues for counties and cities are quite similar to those of the states. The main difference is that counties and cities must be mindful of "home rule" laws that can limit what these localities can do if the state has already pre-empted the field of campaign finance. (280) In other words, if the state has public funding, contribution limits, and other campaign finance laws in effect, localities must evaluate whether their own proposals would be legal under state law. (281) In general, any voluntary program that a locality enacts is likely to be legal because there is no mandate being forced on campaigns or candidates that directly conflicts with state laws. (282) For involuntary programs, each locality must evaluate whether the program in question is likely to be upheld given the laws of the individual state. (283) Additionally, after acceptance of reforms, such as publicly funded campaigns, becomes a reality at the state and local level, the effort to fund federal legislative and executive office races should become easier by virtue of the "experiment in democracy" offered by successful state reform.

C. Concentrate on Judicial Elections

As reformers pursue all avenues for reform and build a record for each, judicial elections should be made a priority for public financing of campaigns. (284) It is a wonder that the cause even needs an advocate, yet unfortunately, judicial elections have been left largely under the radar screen. (285) Justice is impossible if the arbiter is under a donor's influence. (286) Especially in an area of government in which public perception is so vital, it is imperative to keep judicial elections clean and fair--and seen to be so. (287) The Supreme Court has acknowledged that judicial elections deserve special protection, explaining that "a State's interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections." (288) In Williams-Yulee, the Court upheld a Florida ban against judicial candidates personally soliciting contributions, noting the state's compelling interest in protecting the public's faith in the impartiality of its judiciary. (289)

Millions of dollars are now being spent in this arena that were not being spent even ten years ago. (290) In 2014, judicial candidates spent over $9 million on television ads alone. (291) Contributions are pouring into these elections all over the country, and in the 2013-2014 judicial election cycle, interested donors--such as business interests, lawyers, and lobbyists--were "collectively responsible for sixty-three percent of all donations." (292)

It is not difficult to see how such an influx of money into judicial elections can lead to a distorted judicial system and a negative public perception of that system, and reformers will find many instances of--at best--questionable decision-making that will help them build a record to support public financing. For example, one West Virginia justice invoked public scrutiny for voting to overturn a $76 million verdict against a company whose CEO had spent $3 million to help the judge get elected. (293) Another justice faced public criticism for writing "an opinion that saved the Enron Corporation about $15 million after accepting campaign contributions from the company." (294) In Iowa, three state supreme court "justices who participated in a permit same-sex marriage" were voted off the court after choosing not to raise money to campaign in the face of an "unusually aggressive ouster campaign...[f]inanced largely by out-of-state organizations opposed to gay marriage... " (295) The State of California's first female Chief Justice lost a retention election because of her opposition to the death penalty. (296) The big money interests "poured more than $5.6 million into a campaign that would unseat her." (297) Thus, advocates have the opportunity to--and must--build a convincing record that supports the need for reform.

Every party appearing before a judge should feel confident that the judge has had no business dealings with or contributions from any lawyer or party to a matter before that judge, because no party appearing before a judge should ever have to wonder whether a campaign contribution might sway a judge's thinking. (298) In an October 2011 poll of voters, business leaders, and judges, eighty-three percent expressed the opinion that campaign contributions influenced judges' decisions. (299) Reformers should look to local judicial elections as an urgent area for change. (300) In fact, two states--West Virginia and New Mexico--have public funding for judicial elections. (301) Wisconsin and North Carolina had such programs in the past, (302) and, indeed, North Carolina's system was considered a model, but nonetheless both programs were abandoned. (303)

Public funding programs might be used to prohibit conduct by judicial candidates that undermines the perceived integrity of the judicial system by the public, such as the use of attack ads, (304) by making funding conditional on certain requirements. Public funding may also be easier to pass locally for judicial elections by legislators who fear such programs as applied to themselves. (305) Once the success of judicial campaign-funding programs is established, it might then create a better chance for extending these programs to executive and legislative elections.


However difficult the goal of campaign finance reform may appear to be in the wake of the Citizens United cases, current efforts are absolutely vital. For example, pressing for a constitutional amendment that would overturn the Citizen United cases, as mentioned above, is a time-consuming and extremely difficult process, but also brings public attention to the issues. (306) The public is woefully ignorant about campaign finance reform and publicly financed campaigns. (307) Reformers must continue to find the right arguments to demonstrate that elected officials are often too consumed with special interests and with raising money to address the issues important to average citizens.

From the grassroots, Doris "Granny D." Haddock and the New Hampshire Rebellion have used walks and parades to bring national attention to the problem of money in politics. (308) In April 2015, a "gyrocopter" landed on the lawn of the Capitol building, piloted by a citizen who wanted to bring attention to the issue. (309)

"Grass tops" organizations have also been a part of the effort. Ben & Jerry's "Stamp Stampede" involves "tens of thousands of Americans legally stamping messages on our [n]ation's currency to #GetMoneyOut of [p]olitics." (310) The Pluribus Project hopes to stimulate more experimental research and is attempting interventions to increase the quantity and quality of public participation in civic and political life. (311) The "Price We All Pay" campaign, an effort of the California League of Conservation Voters, addresses reform through an environmentalist lens by focusing on the effect of chemical companies and dirty energy on the environment. (312)

Though perceived as a primarily "liberal" interest, campaign finance reform is not a partisan issue. (313) Presidential candidates on both sides of the aisle have recommended campaign finance reform. (314) Before dropping out of the 2016 race for the Democratic presidential nomination, Professor Lawrence Lessig's campaign focused on the need for campaign finance reform. (315) Both Bernie Sanders and Hillary Clinton also made campaign finance reform major priorities in their campaigns. (316) As described above, earlier in the campaign, the Republican nominee Donald Trump referred to the use of super PACs as a "scam" and called upon his fellow presidential candidates to disavow them. (317) In addition, many former candidates for the Republican presidential nomination also expressed support for reform. Governors Chris Christie and Mike Huckabee, for example, advocated for certain limits on campaign financing. (318) Even Rand Paul supported some limited restrictions on spending. (319)

As stated in an blog post written by Republican Robert Carpenter in support of a constitutional amendment to overturn Citizens United:
Sixteen states, and more than 550 cities and towns have supported an
amendment, either by resolution or ballot initiative. Millions of
citizens have signed petitions for an amendment; tens of thousands of
people have called congressional offices demanding an amendment; and
hundreds of demonstrations have taken place throughout the country.
President Barack Obama has voiced support for an amendment....[This is]
not a partisan issue for voters. For them, it is a commonsense
solution. (320)

Non-partisan business-oriented organizations, such as the Committee for Economic Development (321) and the American Sustainable Business Council, (322) have also recognized that enforcement of campaign finance regulation is not a partisan issue.

The above references to some of the remaining options for reform and efforts already underway should bring a sense of realistic optimism about the state of campaign finance in our country. Although not treated in-depth in this article, additional important options for reform in fields of ethics and lobbying are unaffected by the Citizens United cases, and also deserve public attention. (323)

Notwithstanding the Citizens United cases, numerous options for effective reform remain legally viable and should be pursued.


A. Maryland--Public Funding Revived and "Dark Money"Exposed Maryland has a public funding system that is funded with a tax "add-on." (324) The Maryland system matches contributions at 1-1 up to $250, although a candidate can accept up to $6,000 from a single contributor. (325) The program has only been used in 1974, 1994, and 2014, perhaps somewhat hindered by the lack of a reliable funding source. (326) In 2014, however, enough funding was available for two primary candidates and for the general election. (327) Republican gubernatorial nominee Larry Hogan elected to accept $2.6 million from the state's Fair Campaign Financing fund, effectively preventing his own campaign from spending any more than that on the election. (328) Hogan's Democratic opponent, Lieutenant Governor Anthony Brown, instead relied on the many Democratic donors in the state. (329) In November, Hogan--the publicly funded candidate--eked out a win against all odds, despite having been significantly outspent by his opponent. (330) Maryland has only rarely elected Republicans for governor, and Hogan is the first gubernatorial candidate from either party to win in Maryland after accepting public funding. (331)

Maryland is also a leader in disclosure of "dark money"--i.e., money which passes through 501(c)(4), 501(c)(6), and 527s--and requires entities to report their top five donors if they make political expenditures or independent expenditures. (332)

B. Montgomery County, Maryland--Matching Small Contributions

Maryland lawmakers had included a public-funding option for counties in its campaign finance bill passed in 2013. (333) In 2014, Maryland's Montgomery County became the first county to take steps to use it. (334) Montgomery established what one council member called "a [twenty-first]-century model for public financing[:]" a contribution-matching program for donations up to $150 for county executive and council candidates. (335) It is possibly the first post-Citizens United law establishing a new public financing program. (336) Candidates who choose to participate when the program is implemented in 2018 will not be permitted to accept contributions from PACs or corporations. (337)

The measure--well-received and unanimously passed by the council--will entitle participating candidates to between $125,000 and $750,000 for the primary and general elections each, depending on the office sought. (338)

C. Maine--Second Coming of the Clean Elections Act

Maine, which in 1996 became the first state to pass a Clean Elections Act, recently approved a ballot measure to establish a new public financing system--funded by closing corporate tax loopholes--and increase the transparency of outside groups' funding. (339) Maine Citizens for Clean Elections, a nonpartisan organization, spearheaded the effort to get the initiative on the ballot. (340)

The original 1996 law was weakened significantly by the U.S. Supreme Court's 2011 decision in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, which held that giving candidates "bonus" public funding when faced with a high-spending opponent would be infringing on the privately-funded candidates' freedom of speech. (341) Since that decision, the percentage of candidates running in "clean election" jurisdictions in Maine who participate in public financing has dropped from a peak of eighty-one percent to just fifty-three percent. (342) The new initiative relies on a two-phase distribution: in order to receive the first round of funding, "candidates must demonstrate community support through collecting a minimum number of checks or money orders of $5 [or] more made payable to the Maine Clean Election Fund." (343) Then to receive the second round, candidates must collect a set number of additional small donations in order to demonstrate that they have community support. (344)

D. Chicago, Illinois--Advisory Ballot Initiative Endorsing Public Funding

Chicago voters passed a nonbinding ballot measure in 2015 in support of establishing a citywide system for public campaign financing. (345) The measure was supported by all five mayoral candidates. (346) It asked residents of the Windy City whether they supported a system of small contributions and "a limited amount of public money," and sailed through with seventy-nine percent of voters in support. (347) Implementing public financing, advocates hope, could be a step toward reducing the influence of private money on Chicago's political system. (348)

E. Seattle, Washington--Voucher Program

In 2013, Seattle seemed poised to become a leader in campaign finance reform. A "citizen-funded election system" measure was on the ballot--essentially a public donation matching program modeled on the successful program implemented in New York City. (349) The measure failed by only a small margin despite having faced significant opposition. (350)

When it came time to consider putting the measure back on the ballot in 2014, supporters hit another snag. The motion to place it on the city council's agenda failed, with members deadlocked at 4-4. (351) The four members of the city council who opposed the legislation broke with established practice by barring it from being introduced at all. (352)

Despite those initial setbacks, in 2015, voters approved a different public financing proposal. (353) The initiative, effective in 2017, will give every voter in the city four $25 vouchers to be donated to a candidate or candidates running for city office. (354) It will also include a range of reforms designed to control campaign spending and increase transparency. (355)

F. Buffalo, New York--Exploration of Public Financing

In 2014, Buffalo's Common Council established a committee to explore the possibility of future public financing for city elections. (356) While any action would not take place for some time, the council's openness to reform is encouraging. (357)

G. California--Dark Money Revealed

California, with its Fair Political Practices Commission, is a standout among the states for its commitments to transparency and disclosure in campaign finance, as well as its strong enforcement. (358) Emblematic of this is the state legislation signed in 2014 that took aim at dark money. (359) The law mandates disclosure of donors for groups that spend more than $50,000 on political expenditures, or that accrue at least $100,000 over the course of four consecutive years. (360)

H. Colorado--"People PACs"

Colorado allows the formation of "small donor committees," which aim to collect a high number of small donations. (361) These committees are permitted to make larger donations than other types of committees, but benefactors must limit their donations to no more than $50 per calendar year. (362) There is a loophole, though: unions can ask their members to sign over a portion of their dues to a union small-donor committee, which is free from the restrictions placed on the unions themselves. (363)

I. Tallahassee, Florida--Charter Amendment and New Ethics Regulations

In 2014, Tallahassee voters approved a referendum, framed as an anti-corruption measure and designed to limit large contributions and encourage small ones. (364) The initiative, which enjoyed the support of two-thirds of Tallahassee voters, combines new contribution limits and tax rebates. (365) The bill was originally conceived by an advocacy group called Represent.Us, which advocates for anti-corruption legislation such as the American Anti-Corruption Act, (366) and support for the effort came from both ends of the political spectrum, including Tea Party proponents and progressives; the influence of money in politics is, it seems, one of the few issues on which these groups can agree. (367)

J. Philadelphia, Pennsylvania--New Coordinated Spending Regulation

In response to widespread flouting of restrictions on coordinated spending, Philadelphia's Board of Ethics recently adopted a number of new regulations. (368) The existing language had been sufficiently vague that it was common for candidates to find workarounds, effectively loosening restrictions on coordinated spending. (369) The new language makes explicit that such spending is prohibited. (370) In response, the Brennan Center for Justice, which consulted on the new rules, said the regulation was "one of the most innovative in the country, for which the [b]oard should be applauded....States and municipalities should look to Philadelphia as an example of strong, effective campaign finance regulation." (371) Reform advocates should hope they do.

K. New Mexico--Public Opinion Unambiguously Favors Reform

A January 2015 poll commissioned by Common Cause New Mexico found near-unanimous support in the state for rules requiring greater disclosure of political contributions: nine in ten of those surveyed were in favor of establishing such regulations. (372) Voters also favored other reforms by significant margins: tightening of public financing rules, a two-year cooling-off period between leaving the legislature and becoming a lobbyist, and the establishment of independent ethics and redistricting commissions. (373) Business leaders, too, support these reforms; a poll the following month, commissioned by the Committee for Economic Development, found broad support among New Mexico business leaders for similar reforms. (374) Especially notable is the eighty-nine percent support for regulations requiring greater disclosure of political contributions. (375)

L. New York, New York--Increased Independent Spending Disclosure

In August 2014, New York City passed a more comprehensive set of independent expenditure disclosure requirements. (376) Under the new law, all organizations that contribute to other entities that engage in independent expenditures must disclose their owners, officers, and board members. (377) Organizations that contribute more than $50,000 to these spenders must disclose where their own funding comes from--i.e., the contributors to major contributors. (378)

Finally, independent spenders must list their top three donors on campaign materials and also display the Campaign Finance Board's web address where voters can get more information. (379)

M. Connecticut--Ensuring Sustainability of Public Financing

Connecticut's public financing program enjoys high participation with more than eighty percent of candidates taking part during the 2014 cycle. (380) In the wake of Citizens United, however, outside money has poured into the state, far outstripping the public funds that candidates themselves spend on their races. (381) Reform leaders are considering proposals to counter the fast-increasing independent expenditures. (382)











Nicole A. Gordon (*)

(*) Nicole A. Gordon was the founding Executive Director of the New York City Campaign Finance Board and is the Faculty Director of the Baruch College Marxe School of Public and International Affairs at CUNY and Adjunct Professor of Public Affairs. Thanks to Laith Hamdan for his dedicated and painstaking assistance on this article. Special thanks to Professor Richard Briffault of the Columbia University School of Law and to Professor Michael J. Malbin of the University at Albany, SUNY and Executive Director of the Campaign Finance Institute for their close read and comments on this article. Thanks also to Frederick A.O. Schwarz, Jr. and Larry Norden of the Brennan Center, Amy Loprest of the N.Y.C. Campaign Finance Board, and Professor Spencer Overton of the Georgetown School of Law for their responses, and to Issue One for its support of an earlier draft of this paper. Responsibility for any deficiencies in its content or accuracy rests with the author.

(1) Citizens United v. FEC, 558 U.S. 310 (2010).

(2) See Stephen E. Gottlieb, Foreword: Building a Better Path to Office: Selected Topics in Elections Law, 9 ALB. GOV'T L. REV. vii, ix (2016).

(3) See Citizens United, 558 U.S. at 364-65. Although Citizens United involved only a corporate entity, its reasoning is understood to have approved unions' rights to make independent expenditures as well. See, e.g., Jacintha M. Webster, Note, An Impossible Balance: Judicial Elections and the Constitution, 9 ALB. GOV'T L. REV. 384, 398 (2016).

(4) See CIAHA TORRES-SPELLISCY, BRENNAN CTR. FOR JUSTICE, TRANSPARENT ELECTIONS AFTER CITIZENS UNITED 3, 6 (2011), (discussing that at the time Citizens United was decided, twenty-four states prohibited either corporations or unions from making political contributions).

(5) See id. at 6. Prior to the Court's ruling, individuals could give up to $5,000 to a PAC and, of course, could spend unlimited amounts "independently." See Contribution Limits for 2015-2016 Federal Elections, FED. ELECTION COMMISSION, (last visited Sept. 22, 2016) [hereinafter Contribution Limits].

(6) See Citizens United, 558 U.S. at 365 (citations omitted).

(7) See, e.g., McCutcheon v. FEC, 134 S. Ct. 1434, 1462 (2014) (voiding federal limits on an individual's aggregate contributions to candidates, party committees, and PACs because such limits were not narrowly tailored to avoid abridging First Amendment free association); Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721, 753 (2011) (holding that public funding programs may not attempt to equalize candidates' opportunities by providing additional public funds to publicly financed candidates in direct response to the campaign activities of high-spending non-publicly financed candidates); Davis v. FEC, 554 U.S. 724, 743--44 (2008) (holding unconstitutional the so-called "Millionaire's Provision," which relaxed contribution limits for candidates whose opponents spent more than a certain amount of personal funds on their own campaigns on the ground that the provision impermissibly burdened the First Amendment); v. FEC, 599 F.3d 686, 696 (D.C. Cir. 2010) (holding that limits on independent contributions to a nonprofit, unincorporated association violated the First Amendment, as the government had no valid anti-corruption interest in limiting such contributions). This article will use the phrase "Citizens United cases" to refer to these and other major cases related to campaign finance reform.

(8) See Robert G. Boatright et al., Independent Expenditures in Congressional Primaries after Citizens United: Implications for Interest Groups, Incumbents and Political Parties, 5 INTEREST GROUPS & ADVOCACY 119,122-24 (2016).

(9) See id. at 120-21.

(10) See id. at 122-24.

(11) See id. at 126.

(12) See Citizens United v. FEC, 558 U.S. 310, 360 (2010) ("[independent expenditures do not lead to, or create the appearance of, quid pro quo corruption." (citation omitted)).

(13) See Michael Hiltzik, Five Years after Citizen United Ruling, Big Money Reigns, LA. TIMES (Jan. 24, 2015),

(14) See Paul Blumenthal, Yes, Citizens United and Other Court Rulings led to a Rise in Dark Money, HUFFINGTON POST (Aug. 26, 2016), "Dark money" refers to the practice of avoiding disclosure requirements by making political expenditures, for example, through nonprofit organizations that are not required to disclose their donors. See Michael Beckel, What is 'Dark Money'and Why do so Many People Think it's Bad?, NBC NEWS (Jan. 20, 2016),

(15) See, e.g., Hiltzik, supra note 13. A related point is that corporations are apparently exerting more pressure than in the past on employees to support their favored political candidates. See, e.g., Paul Blumenthal, Thanks to Citizens United, Your Boss can Bring Politics into the Workplace, HUFFINGTON POST (Feb. 16, 2016),

(16) The 2015 presidential primaries may even have demonstrated the limitations of the much-feared "super PACs," whose influence has not turned out to be nearly as great as some had feared. See Emily Atkin, New Hampshire's Biggest Loser: The Super PAC, THINK PROGRESS (Feb. 11, 2016), For example, in early 2016, presidential candidates Donald Trump and Bernie Sanders proved able to rise in the polls without the spending of super PACs that supported them. See Editorial, America, Don't Despair: Democracy is Working, NEWSDAY. (Feb. 10, 2016), ("Sanders and Trump together have undermined Citizens United and the power of the super PACs."); see also Atkin, supra ("[V]oters came out in droves to cast ballots for two candidates who don't have super PACs."). In the case of now-President Trump, he was at first a self-funded candidate who said he did not want or need super PAC funding and called them "scams." See Paul Blumenthal, Donald Trump Takes Aim at Rivals' Super PAC Support, HUFFINGTON POST (Oct. 26, 2015), In the case of Senator Sanders, he rejected super PACs on ideological grounds and was able to sustain a campaign based primarily on small contributions from individuals. See Philip Bump, Donald Trump and Bernie Sanders Strike Huge Blows Against the System--But With One Key Difference, WASH. POST (Feb. 10, 2016),

(17) See infra Part II. In particular, the Supreme Court's stated commitment to limiting spending that is not truly "independent" offers reformers significant opportunities to rein in coordinated spending. See Citizens United, 558 U.S. at 360-61.

(18) See Paul Barrett, Five Ways the Supreme Court Transformed Campaign Finance, BLOOMBERG (Jan. 14, 2015),; Ira Glasser & William Josephson, Letter to the Editor, Shedding Light on Dark Money, N.Y. TIMES (Feb. 5, 2016),

(19) See, e.g., infra Appendix A.

(20) It should be understood that some of the reform efforts suggested here might be extremely difficult to achieve. That is not to say, however, that they cannot be achieved or that no benefit is to be gained from the effort itself. As discussed below, reform efforts have been successful in the past, and even those efforts that are ultimately not successful bring public attention to the issues and help to lay the foundation for future efforts. See infra Appendix A.

(21) See Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721, 727 (2011).

(22) Id. at 754 (quoting Buckley v. Valeo, 424 U.S. 1, 57 n.65, 92-93, 96 (1976)); but see Richard L. Hasen, Opening the Political Money Chutes, REUTERS BLOG (Apr. 7, 2014), (describing how the Supreme Court has made it increasingly difficult to enact reform measures by narrowing the justifications for such regulation so that the justifications must essentially aim to prevent actual bribery).

(23) See Ariz. Free Enter. Club's Freedom Club PAC, 564 U.S. at 754 (quoting Buckley, 424 U.S. at 57 n.65).

(24) Hybrid models may also be employed by combining two or more of the listed approaches. See Mark Schmitt, Small-Donor Empowerment: A New Menu of Options to Strengthen the Voice of Citizens, NEW AM. (Apr. 29, 2015), ("[A]reas for possible research and experimentation[] includ[e] hybrid systems.").

(25) See, e.g., Ciara Torres-Spelliscy & Ari Weisbard, What Albany Could Learn from New York City: A Model of Meaningful Campaign Finance Reform in Action, 1 ALB. GOV'T L. REV. 194, 225-26 (2008) (describing how New York City's public financing system enables candidates to obtain public funds that match small private contributions).

(26) See, e.g., id. at 238 (describing New York City's public financing system, which is completely voluntary).

(27) See, e.g., N.Y.C. ADMIN. CODE [section] 3-705(2)(a) (2016) (providing that a $175 contribution, matched at a rate of six to one, entitles a candidate to the statutory maximum public funding amount of $1,050 per contributor).

(28) See Schmitt, supra note 24.

(29) See id.

(30) See id.

(31) See ELISABETH GENN ET AL., BRENNAN CTR. FOR JUSTICE & CAMPAIGN FIN. INST., DONOR DIVERSITY THROUGH PUBLIC MATCHING FUNDS passim (2012),; Michael J. Malbin et al., Small Donors, Big Democracy: New York City's Matching Funds as a Model for the Nation and States, 11 ELECTION L.J. 3 passim (2012); Schmitt, supra note 24.

(32) See GENN ET AL., supra note 31, passim; Malbin et al., supra note 31, passim; Schmitt, supra note 24.

(33) See GENN ET AL., supra note 31, passim; Malbin et al., supra note 31, passim.

(34) See Malbin et al., supra note 31, at 3-4.

(35) See MICHAEL J. MALBIN, CAMPAIGN FIN. INST., CITIZEN FUNDING FOR ELECTIONS: WHAT Do WE KNOW? WHAT AEE THE EFFECTS? WHAT ARE THE OPTIONS? 14, 21 (2015), CitizenFundingforElections.pdf; Public Financing: What's the Return on Investment at the Voting Booth?, N.Y.C. CAMPAIGN FIN. BOARD (Aug. 26, 2015), A study is underway by the New York City Campaign Finance Board with the CUNY Graduate Center that seeks to establish whether there is a correlation between small donor contributions and other civic engagement. The preliminary findings are impressive--in the 2013 Democratic primary, contributors were three times more likely to vote than those who did not. See id.

(36) N.Y.C. ADMIN. CODE [section] 3-705 (2016).

(37) L.A. MUN. CODE [section] 49.7.23 (2016).

(38) ARIZ. REV. STAT. ANN. [section] 16-950(A) (2016); Public Matching Funds: An Introduction, CITY OF TUCSON, (last visited Sept. 22, 2016) (describing the matching funds program established in Tucson).

(39) H.R. 20, 113th Cong. (2014).

(40) See id. This bill is also known as the Sarbanes bill, and its status may be tracked on "," a government website. See H.R. 20 (113th): Government by the People Act of 2014, GOVTRACK.US, (last visited Sept. 23, 2016).

(41) See, e.g., Lee Drutman, Opinion, The Government By the People Act Would Give 'Citizens United' a Run for Its Money, MOYERS & COMPANY (Feb. 19, 2015), (noting that the organization "New America" supports the bill); Adam Lioz, The Government By the People Act, DEMOS (Feb. 5, 2014), government-people-act; Supporting Organizations of the Government By the People Act, JOHN SARBANES WORKING FOR Us, (last visited Sept. 22, 2016) (offering an extensive list of groups that support H.R. 20); see also Sign On: Government by the People Act, PROGRESSIVE CHANGE CAMPAIGN COMMITTEE, (last visited Sept. 22, 2016) (providing that over four-hundred thousand individuals have signed a petition in support of H.R. 20).

(42) See Cosponsors: H.R. 20, C0NGRESS.GOV, (last visited Sept. 22, 2016). In fact, North Carolina Republican Representative Walter B. Jones, Jr. was an original co-sponsor. See id.

(43) See E. Stewart Crosland, Note, Failed Rescue: Why Davis v. FEC Signals the End to Effective Clean Elections, 66 WASH. & LEE L. REV. 1265, 1279-80 (2009); Andrew Spencer, Note, Cleaning Elections, 54 ARIZ. L. REV. 277, 288 (2012).

(44) See, e.g., The Maine Clean Election Act, ME. COMMISSION ON GOVERNMENTAL ETHICS & ELECTION PRAC, (last visited Sept. 29, 2016) ("To become eligible [for Maine's public financing of political campaigns], candidates must demonstrate community support through collecting a minimum number of checks or money orders of $5 or more made payable to the Maine Clean Election Fund.").

(45) See ME. STAT. tit. 21-A, [section] 1124(1) (2016); see also Paul Blumenthal, Maine Voters Hope to Restore Their Revolutionary Election System, HuFFINGTON POST (Sept. 4, 2015), us_55e8bf3be4b093be51bafa2e (noting that Maine was the first state to enact such an act).

(46) CONN. GEN. STAT. [section] 9-701 (2016).

(47) ARIZ. REV. STAT. ANN. [section] 16-940 (2016).

(48) See Ariz. Free Enter. Club's Freedom PAC v. Bennett, 564 U.S. 721, 753-55 (2011); Adam Liptak, Justices Strike down Arizona Campaign Finance Law, N.Y. TIMES (June 27, 2011), Participation in the Maine program has been declining since its enactment, and there was record low participation during the last election cycle. See Mario Moretto, Barely Half of Maine's Legislative Candidates Tap Public Campaign Fund, a Record Low Since Clean Election Act Passed, BANGOR DAILY NEWS (Oct. 1, 2014),

(49) See A.J. Higgins, Maine Votes to Strengthen Clean Elections Laws, ME. PUB. (Nov. 4, 2015), The initiative also imposes new disclosure requirements and increases the penalties for violations of the state's campaign finance laws. Id.

(50) See, e.g., ARK. CODE ANN. [section] 7-6-222(a) (2016).

(51) Id.

(52) MINN. STAT. [section] 290.06, subdiv. 1.23 (2016). Minnesota's political contribution refund program, however, has been suspended for contributions made between July 1, 2015, and June 30, 2017. See Political Contribution Refund Program Suspended, MINN. REVENUE, (last updated June 22, 2015).

(53) MINN. STAT. [section] 290.06, subdiv. 1.23.

(54) See John Pudner, The Tea Party Case against Mega Donors, DAILY BEAST (May 26, 2015),

(55) See Andy Kroll, Republicans--Yes Republicans--Are Joining the Battle against Big Money Politics, MOTHER JONES (Nov. 25, 2013),

(56) See Marjorie E. Kornhauser, Cognitive Theory and the Delivery of Welfare Benefits, 40 LOY. U. CHI. L.J. 253, 284 n.95 (2009).

(57) See id.

(58) See, e.g., Sharon C. Nantell, The Tax Paradigm of Child Care: Shifting Attitudes toward a Private/Parental/Public Alliance, 80 MARQ. L. REV. 879, 903, 926 (1997) (describing how the Tax Code already provides for a similar structure with other tax credits, such as the Earned Income Tax Credit and certain child care credits).

(59) See, e.g., SEATTLE MUN. CODE [section] 2.04.600(a) (2016) (describing Seattle, Washington's voucher system).

(60) David Kroman, Seattle Just Changed the Way We Pay for Local Political Campaigns, CROSSCUT (NOV. 4, 2015),

(61) See SEATTLE MUN. CODE [section] 2.04.630(b).

(62) See Gene Johnson, Seattle Aims to Get Average Joes into Elections

with $100 in Vouchers They Can Give Candidates, U.S. NEWS (Nov. 18, 2015),

(63) See Joshua Rosenthal, Accountability Vouchers: A Proposal to Disrupt the Undue Influence of Wealthy Interests on State Politics, 45 U. TOL. L. REV. 211, 236 (2014).

(64) See id.

(65) See MALBIN, supra note 35, at 29.

(66) See generally Malbin et al., supra note 31, at 3, 4 (providing an empirical analysis of New York City's matching funds system and concluding that the role of small donors is enhanced when this system is used).

(67) See id. at 3 ("[Matching funds] increase the number and importance of low-dollar donors[ing] shift the demographic and class profile of those who give."). One report even compares donor behavior in city council districts in New York City, which have a matching program, to State Assembly districts in New York City, which do not. See GENN ET AL., supra note 31, passim. That report concludes, among other things, that "[s]mall donors to 2009 City Council candidates came from a much broader array of city neighborhoods than did the city's small donors to 2010 State Assembly candidates!,]" and that the data "support the claim that small donor matching funds help bring participants into the political process who traditionally are less likely to be active." See id. at 4.


(69) See id. at 15 (arguing that catering to large donors adversely affects working and middle class voters).

(70) See MlMI MARZIANI ET AL., BRENNAN CTR. FOR JUSTICE, MORE THAN COMBATING CORRUPTION: THE OTHER BENEFITS OF PUBLIC FINANCING 1-2 (2011) ("[Funding programs] promote contested and competitive elections, foster diversity in the electoral process, and encourage voter-centered campaigns.").

(71) See Richard Briffault, Public Funding and Democratic Elections, 148 U. PA. L. REV. 563, 563-64 (1999).

(72) See, e.g., SEATTLE MUN. CODE [section] 2.04.630(b) (2016).

(73) See infra Appendix B.

(74) See Editorial, Can New York Lead on Campaign Finance Reform?, N.Y. TIMES (Mar. 13, 2014),; see also David Howard King, For Cuomo, Passing Ethics Bill was Urgent, Signing it is Not, GOTHAM GAZETTE (Aug. 12, 2016), (describing more recent developments in New York State).

(75) See Clean Elections, COMMON CAUSE: MD., (last visited Sept. 22, 2016).

(76) See Matthew Cella & Kellan Howell, Larry Hogan Gets Unprecedented Win in Governor's Race on Public Financing, WASH. TIMES (Nov. 5, 2014),

(77) Gregg Levine, Chicago Voters Overwhelmingly Endorse Campaign Finance Reform, AL JAZEERA: SCRUTINEER (Feb. 25, 2015), http://america.aljazeera.eom/blogs/scrutineer/2015/2/25/chicago-voters-overwhelmingly-endorse-campaign-finance-reform.html.

(78) N.Y.C. CAMPAIGN FIN. BD., A DECADE OF REFORM: 1988-1998, at 61 (1998) (alteration in original).

(79) Press Release, Campaign Fin. Inst., CFI's Malbin Presents Testimony to NY's Moreland Commission on Public Corruption (Oct. 28, 2013),'s_Moreland_Commission_on_Public_Corruption.aspx [hereinafter Press Release, Campaign Fin. Inst.]. Of course these figures will have changed over time, as the matching rate has increased.

(80) STEVEN M. LEVIN, CTR. FOR GOVERNMENTAL STUD., KEEPING IT CLEAN: PUBLIC FINANCING IN AMERICAN ELECTIONS 13 (2006) ("The cost of even the largest public financing programs (like those in Arizona and New York City) represent only a small fraction of the jurisdiction's budget.").

(81) Press Release, Campaign Fin. Inst., supra note 79.

(82) See Michael Clyburn, Public Campaign Financing: The Path from Plutocracy to Pluralism, 7 SEATTLE J. SOC. JUST. 285, 291 (2008).


(84) Id. at 10.

(85) Id. at 13, 22.

(86) Id. at 14, 22.

(87) See Clyburn, supra note 82. at 291.

(88) See 46 RULES OF N.Y.C. [section] 1052 (2016) ("[(a)(10)] If at any time, the [campaign finance] board determines that the amount of money in any special fund or funds established by any such local law, establishing a voluntary system of campaign finance reform, to fund a system of optional public campaign financing for candidates abiding by the requirements of such law, is insufficient, or is likely to be insufficient, for payment to such participating candidates pursuant to such law for elections to be held in perpetuity, it shall report this determination to the commissioner of finance, along with its estimate of the additional amount which will be necessary to provide such participating candidates with financing pursuant to such law and a detailed statement of the assumptions and methodologies on which such estimate is based. Not more than four days after receiving such estimate and supporting materials, the commissioner of finance shall transfer an amount equal to such estimate from the general fund to such special fund or funds. All monies transferred to such special fund or funds shall not be considered revenues of the city and payments from such fund or funds shall be made without appropriation and shall not be included in the expense budget of the city....The comptroller shall submit monthly reports to the board regarding the status of the fund or funds and more frequent reports when the board requires. Monies of the fund or funds shall be paid out by the comptroller only on warrant of the board....[(c)] The board shall, not later than March tenth of each year, approve and submit to the mayor detailed itemized estimates of the financial needs of the campaign finance board for the ensuing fiscal year....The mayor shall include such estimates in the executive budget without revision, but with such recommendations as the mayor may deem proper. Upon inclusion in the executive budget, the budget submitted by the campaign finance board shall be adopted pursuant to such provisions of...this charter as arc applicable to the operating budget of the council." (emphasis added)); N.Y.C. ADMIN. CODE [section] 3-709 (2016) ([I.] There is hereby established a special fund, to be known as the New York city campaign finance fund. The moneys in such fund may be expended by the campaign finance board only as payments for participating candidates in accordance with the provisions of this chapter....[2.[ The fund shall be kept separate and shall be credited with all sums appropriated therefore, any donations received pursuant to subdivision nine of this section and all earnings accruing on such funds....[3. I]n time for inclusion in the executive expense budget...and at such other times as the board shall deem necessary, the board shall submit its estimate of the amount of public funds which will be necessary to provide candidates sufficient financing for elections in the next year in which elections are scheduled pursuant to the charter and for elections to fill vacancies to be held prior to such year, and a reserve for contingencies. Such estimates shall be submitted in such manner and at such times as to assure that such amounts as shall be necessary may be appropriated in full by the beginning of the fiscal year prior to that in which elections are scheduled...and that additional amounts may be appropriated as necessary....[7.] Any payment from the fund in the possession of such a candidate...on the date of [a] final disqualification or invalidation may not thereafter be expended for any purpose except the payment of liabilities incurred in qualified campaign expenditures before such date and shall be promptly repaid to the fund....[8.] Prior to the first distribution of public funds to candidates in any election, the board shall make a determination whether the moneys in the fund are sufficient to provide all candidates the amounts they may receive pursuant to this chapter for all elections to be held during the calendar year for which such determination is made. Such determination shall be published in the City Record, together with information supporting such determination....[9.] The board shall bo empowered to accept donations to be credited to the fund. The board may devise such methods of soliciting and collecting donations as it may deem feasible and appropriate." (emphasis added)).

(89) See The Federal Election Campaign Laws: A Short History, FED. ELECTION COMMISSION, (last visited Sept. 30, 2016); supra notes 4-5 and accompanying text.

(90) See Coordinated Communications and Independent Expenditures, FED. ELECTION COMMISSION, (last updated Jan. 2015) [hereinafter Coordinated Communications] ("In general, amounts spent for coordinated communications are limited, but independent expenditures are unlimited.").

(91) See Citizens United v. FEC, 558 U.S. 310, 357 (2010) (declining to extend the limit on direct contributions to independent expenditures); Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 619 (1996) (explaining that Congress may regulate coordinated expenditures, should it so choose).

(92) See Citizens United, 558 U.S. at 360.

(93) Coordinated Communications, supra note 90.

(94) See Scott E. Thomas & Jeffrey H. Bowman, Obstacles to Effective Enforcement of the Federal Election Campaign Act, 52 ADMIN. L. RKV. 575, 577-78 (2000) ("Through the years, the Commission has received a great deal of criticism for allegedly not satisfying its enforcement mandate. Critics charge that the Commission has failed to provide strong and timely enforcement of the campaign finance laws. The FEC has been called, among other things, 'a lapdog,' a 'toothless watchdog,' a 'toothless dog,' a 'dithering nanny,' a 'toothless tiger,' a 'watchdog without a bite,' 'feckless,' 'beleaguered,' 'a self-licking ice cream cone,' 'pathetic,' and 'nuts.'").

(95) See Steve Benen, Nothing Like This has Been Done Before, MSNBC: MADDOWBLOG (Apr. 23, 2015),

(96) Fed. Election Comm'n, Advisory Opinion 2011-12, at 1, 4 (June 30, 2011),

(97) Hearing on Amendments to Regulation No. 1 before the Phila. Bd. of Ethics 4 (Sept. 17, 2014) (written testimony of Daniel I. Weiner, Counsel, Brennan Ctr. for Justice), (alterations in original).

(98) See 52 RULES OF N.Y.C. [section] l-08(f) (2016); N.Y.C. Campaign Fin. Bd., Advisory Opinion 2009-7: Guidance on Law Relating to Third Party Expenditures (Aug. 6, 2009), [hereinafter N.Y.C. Campaign Fin. Bd., 2009-7]; N.Y.C. Campaign Fin. Bd., Advisory Opinion 2013-1: Clarification of Independent Activity and In-Kind Contributions (Jan. 10, 2013), [hereinafter N.Y.C. Campaign Fin. Bd., 2013-1].

(99) See N.Y.C. Campaign Fin. Bd., 2013-1, supra note 98.

(100) See Joseph Tanfani & Seema Mehta, Super PACs Stretch the Rules that Prohibit Coordination with Presidential Campaigns, L.A. TIMES (Oct. 7, 2015),

(101) See id.

(102) See Maggie Haberman & Nicholas Confessore, 'Super PAC Raises $15.6 Million for Hillary Clinton Campaign, NY. TIMES (July 2, 2015), 7/02/super-pac-raises-15-6- million-for-hillary-clinton-campaign/.

(103) See generally 18 U.S.C. [section] 207 (2012) (placing "revolving door" limitations on former officers or employees and elected officials from the executive branch).

(104) See Summary of Democracy 21 Model Bill to Shut Down Individual-Candidate Super PACs and Prevent Coordination between Outside Spending Groups and Candidates, DEMOCRACY 21 (Mar. 19, 2015),

(105) See id.

(106) See Educational Papers: National Security /No Foreign Contributions, TAKE BACK OUR REPUBLIC, (last visited Sept. 16, 2016).

(107) See id. ("While we welcome foreign investment in the United States to bring jobs and innovation...[i]t is against [fjederal law for foreign governments, foreign nationals, or companies controlled by foreign nationals to give money to political campaigns in the United States.").

(108) See id.

(109) See Toni M. Massaro, Corporate Speech and Electoral Spending: Foreign Nationals, Electoral Spending, and the First Amendment, 34 HARV. J.L. & PUB. POL'Y 663, 664-65 (2011); Reuven S. Avi-Yonah, Citizens United and the Corporate Form, 2010 WIS. L. REV. 999, 1045-46.

(110) See Massaro, supra note 109, at 675-77. In an ideal world, corporations would also be required to file confirmation that a majority of their board members and any shareholders holding a controlling interest are not foreign nationals and therefore prohibited from political spending in the United States. This issue may take on an added importance given recent allegations of Russian interference in the 2016 American election.

(111) See Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 223 (1999) ('"Total disclosure' has been recognized as the 'essential cornerstone' to effective campaign finance reform...." (citations omitted)).

(112) See Rosenthal, supra note 63, at 223 ("Disclosure of campaign funds may play a role in any campaign finance system, but it is insufficient as a lone policy.").

(113) James Warren, His Mouth Where His Money Is, N.Y. DAILY NEWS (Nov. 16, 2014),

(114) See Clyde Wilcox, Transparency and Disclosure in Political Finance: Lessons from the United States 37-38 (June 2001) (unpublished manuscript), ("Disclosure can be an important component of any system of campaign finance regulation....It can enhance accountability by allowing citizens to hold elites accountable for any policies that they exchange for rents. It can enable governments to earn the trust of their citizens, and allow policymakers and academics to monitor the relationship between money and politics and to adapt to changing conditions.").

(115) See, e.g., Citizens United v. Gessler, 773 F.3d 200, 211 (10th Cir. 2014) (stating that direct contributions have a greater tendency to promote corruption and quid pro quo arrangements between donors and political candidates, and are therefore subject to more regulation).

(116) See The FEC and the Federal Campaign Finance Law, FED. ELECTION COMMISSION, http://www.fec.gOv/pages/brochures/fecfeca.shtml#Disclosure (last updated Jan. 2015). Some argue that the amount is too low, has not kept up with inflation, and should be raised to $500 to protect free speech and privacy rights. See, e.g., Educational Papers: Disclosure Levels, TAKE BACK OUR REPUBLIC, (last visited Sept. 16, 2016). On the other hand, the median household income is just under $54,000 and "[o]nly a tiny fraction of Americans actually give campaign contributions to political candidates, parties or PACs. The ones who give contributions large enough to be itemized (over $200) is even smaller. The impact of those donations, however, is huge." Donor Demographics, OPENSECRETS.ORG, (last visited Jan. 31, 2017) (providing a detailed analysis of federal contributions by the top one percent of one percent of the population in the 2014 election cycle); see infra note 184 and accompanying text; see also Daily Data, How Much do the 1% of the 1% Control Politics?, CROWDPAC (Apr. 21, 2015), ("[C]lose to [half] the money in American politics is coming from 0.01% of the wealthiest donors--that's around 25,000 compared to nearly 150 million registered voters.").

(117) Citizens United v. FEC, 558 U.S. 310, 314 (2010) (citation omitted). As noted above, individuals could always make unlimited independent expenditures. See supra note 5.

(118) See Roger Colinvaux, Political Activity Limits and Tax Exemption: A Gordian's Knot, 34 VA. TAX REV. 1, 44-45 (2014).

(119) See id. at 24; infra, text accompanying notes 121-22 (explaining how some organizations classify themselves as 501(c)(4) entities specifically to take advantage of the IRS's unjustifiable interpretation of the law, allowing substantial political spending by 501(c)(4) organizations so that they may engage in unlimited spending without disclosure obligations).

(120) See id. at 25.

(121) See id.

(122) 26 U.S.C. [section] 501(c)(4)(A) (2012) (emphasis added).

(123) See Colinvaux, supra note 118, at 24.

(124) 26 C.F.R. [section] 1.501(c)(4)-l(a)(ii)(2)(i) (2016) (emphasis added).

(125) See B. HOLLY SCHADLER, ALLIANCE FOR JUSTICE, THE CONNECTION: STRATEGIES FOR CREATING AND OPERATING 501(c)(3)s, 501(c)(4)s AND POLITICAL ORGANIZATIONS 13 (3d ed. 2012). Without that status, the unrestricted and undisclosed donations that 501(c)(4) organizations receive would be significantly taxed. See id.

(126) See generally ADAM RAPPAPORT, CITIZENS FOR RESPONSIBILITY & ETHICS IN WASH., THE DARK MONEY DEBATE 2 (2014) (describing how the IRS has yet to take any action despite clear controversies about the agency's interpretation of section 501(c)(4)).

(127) See Ctr. for Responsive Politics, Outside Spending, OPENSECRETS.ORG, (last visited Sept. 16, 2016).

(128) See RAPPAPORT, supra note 126, at 2; see also Press Release, Citizens for Responsibility & Ethics in Wash., CREW Calls on IRS to Amend Rule Allowing Social Welfare Groups to Engage in Political Activity (Apr. 9, 2013), (providing CREW's actual rulemaking petition).

(129) See RAPPAPORT, supra note 126, at 21.

(130) See Letter from Gregory L. Colvin & Lisa Gilbert, Bright Lines Project, to Amy F. Giuliano, Off. of Assoc. Chief Counsel, Internal Revenue Serv. (Nov. 15, 2014), [hereinafter Letter].

(131) See id. It should be noted that, more generally, President Trump has recently called for repeal of the "Johnson Amendment" (which amended section 501(c)(3) to prohibit tax-exempt organizations from participating in political activity). See Jeremy W. Peters, The Johnson Amendment, Which Trump Vows to "Destroy," Explained, N.Y. TIMES (Feb. 2, 2017),

(132) Letter, supra note 130.

(133) 11 C.F.R. [section] 110.11(c)(1) (2016); see also 52 U.S.C. [section] 30120(a) (2012) (requiring that political advertisements disclose who paid for it).

(134) See Symposium, A Debate On Campaign Finance Disclosure, 38 VT. L. REV. 933, 951-52 (2014).

(135) See Richard Briffault, Updating Disclosure for the New Era of Independent Spending, 27 J. L. & POL. 683, 708 (2012).

(136) See id. at 686.

(137) See id.

(138) See id. at 710.

(139) DISCLOSE Act of 2014, S. 2516, 113th Cong. (2014).

(140) See David Earley, DISCLOSE Act Crucial to Transparency of Federal Election Spending, HILL: CONG. BLOC. (July 23, 2014), New York City currently has a similar pass-through disclosure provision in place. See NYC Says No to "Dark Money" Elections, N.Y.C. CAMPAIGN FIN. BOARD (Dec. 9, 2014),

(141) See Ron Jacobs & Larry Norton, New California Disclosure Rules for 501(c) Organizations that Make Independent Expenditures, POL. L. BRIEFING (June 8, 2012), tions-that-make-independent-expenditures/.

(142) See MD. CODE ANN., ELEC. LAW [section] 13-306(e) (LexisNexis 2016).


(144) See, e.g., infra Appendix C.

(145) See Paul Blumenthal, Montana Republicans and Democrats Unite to Ban Dark Money, HUFFINGTON POST, http;// (last updated Apr. 16, 2015).

(146) See Independent Spender Guide, N.Y.C. CAMPAIGN FIN. BOARD, (last visited Jan. 16, 2016).


(148) See id. at 12; see also Ciara Torres-Spelliscy, Not Because It Is Easy, SEC, BRENNAN CTR. FOR JUST.: BLOG (Dec. 4, 2013), ("I hope this...will inspire the Chair of the do the right thing and revive a rulemaking to bring light to dark political spending by corporations.").

(149) Liz Kennedy, Top 5 Ways Citizens United Harms Democracy & Top 5 Ways We're Fighting to Take Democracy Back, DEMOS 11 (2015), The status of the petition is available for public view. See Comments on Rulemaking Petition: Petition to Require Public Companies to Disclose to Shareholders the Use of Corporate Resources for Political Activities, U.S. SEC & EXCH. COMM'N, (last visited Sept. 23, 2016).

(150) The Problem & How to Solve It, CORP. REFORM COALITION, (last visited Sept. 16, 2016).

(151) See EARLEY & VANDEWALKER, supra note 147, at 12.

(152) See id. at 11.

(153) See Derek Willis & Robert Faturechi, How Senate Hopefuls Keep Donors Secret from Voters until It's Too Late, PROPUBLICA (Sept. 18, 2015), The information is often also incredibly difficult to obtain. See Robert Maguire, 14 Months of Runaround: More on How to Obtain (or Not) Public Documents From the IRS, 0PENSECRETS.ORG (Jan. 28, 2015),; Robert Maguire, This 2,143-Page IRS Document Could Be Yours for Just $428.60 (Plus Shipping), OPENSECRETS.ORG (July 21, 2014), Given the prevalence of e-filing in so many other contexts, it is extraordinary that there remain jurisdictions and groups (including the U.S. Senate) that do not provide for filings to be made online. See Miriam Diemer, Senate E-Filing: This Time, Make it Happen, 0PENSECRETS.ORG (July 23, 2013),

(154) See Our Impact: CPA Impact: A Distinguished Record of Effectiveness, CTR. FOR POL. ACCOUNTABILITY, (last visited Sept. 13, 2016).

(155) See Bruce Freed et al., The 2015 CPA-Zicklin Index of Corporate Political Disclosure and Accountability, 2015 CTR. FOR POL. ACCOUNTABILITY 8, 13, 17,

(156) See id. at 10.

(157) See id. at 12.

(158) See id. at 25, app. at 36-41.

(159) See Ctr. for Responsive Politics, Our Vision and Mission: Inform, Empower & Advocate, OPENSECRETS.ORG, (last visited Sept. 23, 2016).

(160) Ctr. for Responsive Politics, About the Site, OPENSECRETS.ORG, (last visited Sept. 23, 2016).

(161) See Nat'l Inst, on Money in State Politics, About Our Data, F0LL0WTHEM0NEY.ORG, (last visited Sept. 23, 2016).

(162) Discover the World's Tech Nonprofits: National Institute on Money in State Politics, FAST FORWARD, (last visited Sept. 23, 2016) [hereinafter Discover Tech Nonprofits].

(163) See Nat'l Inst, on Money in State Politics, Mission & History, F0LL0WTHEM0NEY.ORG, (last visited Sept. 23, 2016).

(164) See Denise Malan, Journalists Learn How to Follow the Money in State Elections, INST. FOR NONPROFIT NEWS (Aug. 18, 2014),

(165) Discover Tech Nonprofits, supra note 162.

(166) See MapLight California, MAPLIGHT, (last visited Sept. 21, 2016); Maplight Wisconsin, MAPLIGHT, (last visited Sept. 21, 2016).

(167) See About MapLight, MAPLIGHT, (last visited Sept. 21, 2016). Some have argued that there may be limitations on the approach of connecting contributions with votes, because so much activity occurs outside this kind of proxy. Tracking the legislative process to expose where the real influence lies and the connection between contributions and votes goes beyond the vote on particular legislation. Influence can be exercised long before any vote is (or is not) taken. Agenda-setting, committee or leadership decisions about what comes to the floor of the legislature, who sits on the relevant committees, and party affiliation, are all relevant avenues of inquiry. See, e.g., Lynda W. Powell, The Influence of Campaign Contributions on Legislative Policy, 11 FORUM: J. APPLIED RES. CONT. POL. 339, 341-43 (2013); MICHAEL J. MALBIN & JOHN FORTIER, CAMPAIGN FIN. INST., BIPARTISAN POLICY CTR., AN AGENDA FOR FUTURE RESEARCH ON MONEY IN POLITICS IN THE UNITED STATES l, 2-3,10 (2013).

(168) See About Us, SUNLIGHT FOUND., (last visited Sept. 20, 2016).

(169) See McCutcheon v. FEC, 134 S. Ct. 1434, 1441, 1448-49 (2014). The Court, however, did not feel that it had to void limits on contributions to individual candidates. See id. at 1452.

(170) See id. at 1441, 1448-49, 1452.

(171) See id. at 1448.

(172) See Richard Briffault, Of Constituents and Contributors, 2015 U. CHI. LEGAL F. 29, 32-33 (providing an in-depth discussion of the implications of permitting out-of-state contributions to candidates).

(173) See id. at 33. This may favor wealthy districts over poorer districts. The costs of running a campaign do not always vary by district, but the ability to raise money often does. See id. at 41-42.

(174) Citizens United v. FEC, 558 U.S. 310, 362 (2010) (citation omitted).

(175) See Bluman v. FEC, 800 F. Supp. 2d 281, 283-84. 289, 292 (D.D.C. 2011), aff'd, 565 U.S. 1104(2012).

(176) See Mark Pazniokas, A Primer on Public Financing of Campaigns in Connecticut, CT MlRROK (July 2, 2014),

(177) See How It Works: New York City's Landmark Campaign Finance Program Provides Public Funds to Candidates for City Office, N.Y.C. CAMPAIGN FIN. BOARD, www.nyccfb .info/program/how-it-works (last visited Sept, 20, 2016) ("[Candidates must c]ollect a minimum number of contributions (of $10 or more) from the area they seek to represent.").

(178) See McCutcheon v. FEC, 134 S. Ct. 1434, 1449 (2014); Randall v. Sorrell, 548 U.S. 230, 236-37 (2006). Vermont state laws prohibiting candidates from accepting contributions of over $100 for an individual, and prohibiting state political parties from contributing more than $400 to their gubernatorial candidates, were held to be unconstitutionally low by the U.S. Supreme Court. See Randall, 548 U.S. at 236-37, 238, 239.

(179) See, e.g., Blair Bowie, The Government Shutdown Shows Contribution Limits Are Needed More Than Ever, U.S. NEWS (Oct. 7, 2013),

(180) Contribution Limits, supra note 5.

(181) These donors must still observe the individual contribution limits to candidates that are in effect in any given jurisdiction. See Contribution Limits, supra note 5.

(182) See Ben Jacobs & Russ Choma, Democrats' Committees Face Staggering Early Deficit among 2016 Mega-Donors, GUARDIAN (May 28, 2015),

(183) See R. SAM GAHRETT, CONG. RESEARCH SERVS., INCREASED CAMPAIGN CONTRIBUTION LIMITS IN THE FY2015 OMNIBUS APPROPRIATIONS LAW: FREQUENTLY ASKED QUESTIONS 3 (2015),; see also 52 U.S.C. [section] 30116 (2012) (providing, as of 2014, federal statutory provisions limiting contributions and expenditures).


(185) State Contribution Limits and Voluntary Expenditure Ceilings, CAL. FAIR POL. PRAC. COMMISSION, WWW. html (last visited Sept. 22, 2016).

(186) See Contribution Limits, N.Y. BOARD ELECTIONS, Limits.html#LimitFormula (last visited Sept. 22, 2016).

(187) See infra Appendix F.


(189) See Caleb P. Burns, Arizona, Florida and Maryland Increase Contribution Limits, Revise Other Campaign Finance Laws, WILEY REIN LLP (May 2013), http://www.wileyrein,com/newsroom-newsletters-item-4593.html.

(190) See infra Appendix F.

(191) See infra Appendix F.

(192) See infra Appendix F.

(193) See infra Appendix F.

(194) See infra Appendix F.

(195) See Ben Joravsky, How Bruce Rauner Used a Legal Loophole to Get a $2.5 Million Campaign Donation, CHI. READER (June 18, 201-1), 3962856.

(196) Id.

(197) See id.

(198) See id.

(199) See Rick Pearson et al, Rauner, Quinn out of Sight Day after Election, CHI. TRIBUNE (Nov. 5, 2014),

(200) See John Byrne, Campaign Contribution Limits Off in Chicago Mayor's Race, CHI. TRIBUNE (Oct. 14, 2014),

(201) See id.

(202) See Julie Bosman, Rahm Emanuel Wins Runoff Election to Secure 2nd Term as Chicago Mayor, N.Y. TIMES (Apr. 7, 2015),

(203) See Spencer Overton, The Participation Interest, 100 GEO. L.J. 1259, 1298 (2012).

(204) See id. at 1299.

(205) See id. For example, a small-donor PAC may contribute up to $6,125 to a gubernatorial candidate, while individuals and other PACs may only contribute $575. See, e.g., COLO. SEC'Y STATE, COLORADO CAMPAIGN AND POLITICAL FINANCE MANUAL app. at 41 (2015),

(206) See generally COLO. SEC'Y STATE, supra note 205 (outlining and providing guidelines for Colorado's campaign finance program).

(207) See Russell v. Burris, 146 F.3d 563, 572-73 (8th Cir. 1998).

(208) See generally 18 U.S.C. [section][section] 201-19 (2012) (outlining conflicts of interests prohibited by a range of applicable law); 5 U.S.C. app. [section][section] 1-505 (2012) (outlining the Federal Advisory Committee Act, the Inspector General Act of 1978, and the Ethics in Government Act of 1978).

(209) One defect in the regulatory framework is how federal bans apply to individual contractors, like consulting professors, but not to executives and corporations that can create PACs. See 48 C.F.R. [section] 37.104 (2016) (discussing restrictions on personal service contracts).

(210) See Petition for Rulemaking on Administrative Fine Program and Commission Forms, FEC RECORD (Fed. Election Comm'n, Wash., D.C.), Apr. 2015, at 9, A petition for certiorari involving the constitutionality of such a regulation was recently denied by the Supreme Court. See Miller v. FEC, 136 S. Ct. 895, 895 (2016), denying cert, to Wagner v. FEC, 793 F.3d 1, 34 (D.C. Cir. 2015).

(211) Then-President Obama was "considering an executive order that would [have] require[d]" federal contractors "to disclose their political contributions...." Julie Hirschfeld Davis, President Obama May Require Federal Contractors to List Campaign Gifts, N.Y. TIMES (Jan. 19, 2016),,html?_r=0.

(212) See Nicole A. Gordon, Campaign Finance Reform: The New York City Model: Essentials for Effective Campaign Finance Regulation, 6 J.L. & POL'Y 79, 85-87 (1997).

(213) See, e.g., id. at 85 n.23 (providing an example of staggered appointments in New York City).

(214) See generally Walker Davis & Maya Gold, How to Keep Campaigns Honest by Improving Enforcement Agencies, CITIZENS FOR RESPONSIBILITY & ETHICS IN WASH., (Aug. 24, 2016), (discussing the role of third parties in campaign finance).

(215) See generally Malbin et al., supra note 31; see also 2013 Post-Election Report: By the People: The New York City Campaign Finance Program in the 2013 Elections, 2013 N.Y.C. CAMPAIGN FIN. BOARD 1, 41-51, (discussing how the New York City Campaign Finance Board--a nonpartisan agency--was successful in enforcing the Campaign Finance Act by encouraging and increasing the role of small contributions in the 2013 election).

(216) See M.D. Kittle, Senate Passes GAB Overhaul, Campaign Finance Reform in 'Extraordinary' Session, WIS. WATCHDOG (Nov. 7, 2015), Legislation was passed, changing the enforcement board of non-partisan judges to a board of six partisan appointees and two retired judges. See id.

(217) See Eric Lichtblau, F.E.C. Can't Curb 2016 Election Abuse, Commission Chief Says, N.Y. TIMES (May 2, 2015),

(218) See id.

(219) See Larry Noble, In Search of Qualified FEC Commissioners, CAMPAIGN LEGAL CTR. (June 30, 2015),

(220) Lichtblau, supra note 217.

(221) Jeremy Wallace, Critics Say FEC Fails To Enforce Campaign Finance Law, HERALD-TRIBUNE (July 21, 2011),; see also Andy Kroll, The Chairwoman Who's at War With Her Own Agency, ATLANTIC (Oct. 13, 2015), ("Republican commissioners...decline to enforce campaign-finance laws because they largely don't think the laws should exist in the first place.").

(222) See 52 U.S.C. [section] 30106(a)(1) (2012); Noble, supra note 219.

(223) Frequently Asked Questions (FAQs): Agency Questions, FED. ELECTION COMMISSION (last visited Sep. 25, 2016) (showing that five of the six commissioners' terms have expired).

(224) For example, people such as Colin Powell, Benjamin Bernanke, Warren Buffett, Condoleezza Rice, or former judges, could be nominated.

(225) See, e.g., Editorial, Senate Republicans' Refusal to Consider Merrick Garland's Supreme Court Nomination is Dangerous Obstructionism, L.A. TIMES (Mar. 16, 2016), (discussing how President Obama's Supreme Court nomination of Merrick Garland demonstrates the U.S. Senate's apparent willingness to refuse to consider clearly qualified nominees when power and politics are at stake); see also Nathan J. Muller, Reflections on the Election Commission--An Interview with Neil O. Staebler, AM. ENTER. INST. (Apr. 5, 1979), an arguably parallel refusal by the Senate to confirm appointees to the FEC during the Carter administration, when the president nominated candidates to the commission without first consulting party leadership).

(226) See generally Schmitt, supra note 24 (providing a list of several states in which enforcement agencies suffer from a lack of funding).

(227) See id. ("Minnesota's tax credit has not been as politically resilient as other state's programs, as it was defunded by a Republican governor and relaunched only when a Democrat was elected.").

(228) See Bill Lueders, Campaign Financing Dead in Wisconsin, WlSCONSINWATCH.ORG (June 30, 2011),

(229) See Rebecca Ballhaus, Martin O'Malley to Accept Public Campaign Financing--And Limits, WALL STREET J. (Nov. 19, 2015),

(230) See id. ("No campaign that is serious can win taking [public financing]...[and the system] hasn't been updated or modernized in two generations...."); Largest Primary Matching Recipients, FED. ELECTION COMMISSION, (last visited Sep. 25, 2016).

(231) See Presidential Election Campaign Fund, FED. ELECTION COMMISSION, (last updated May 13, 2016).

(232) See Blake Ellis, The Real Story Behind the $3 Tax Checkoff Box, CNN (Apr. 11, 2014),

(233) See id.

(234) See Saul Levmore, Taxes as Ballots, 65 U. Cm. L. REV. 387, 391 (1998).

(235) See id. at 392 n.21.

(236) See Jason B. Frasco, Note, Full Public Funding: An Effective and Legally Viable Model for Campaign Finance Reform in the States, 92 CORNELL L. REV. 733, 743 (2007).

(237) State public funding programs have also failed as a direct result of inadequate sources of funding. The Massachusetts public funding program that was passed in 1998, for example, had to be abandoned after the state legislature refused to release funds that had previously been appropriated to fund the program. See id. at 785-86.

(238) See, e.g., John M. Kamensky, Federal Agencies Ratchet up Focus on Performance, IBM CTR. FOR BUS. GOV'T (Apr. 2007),

(239) See supra note 88.

(240) See Lauren Eber, Note, Waiting for Watergate: The Long Road to FEC Reform, 79 S. CAL. L. REV. 1155, 1171 (2006) ("Deficiencies both in the FEC's structure and in the tools the Commission has to carry out enforcement interfere with its performance.").

(241) See id. at 1177, 1179-80.

(242) See 52 U.S.C. [section] 30111(b) (2012).

(243) See Eber, supra note 240, at 1188.

(244) See Lichtblau, supra note 217. Former FEC Chairwoman Ann Ravel has stated: "The likelihood of the laws being enforced is slim...[pjeople think the F.E.C. is dysfunctional. It's worse than dysfunctional." Id.; see also Ann M. Ravel, How Not to Enforce Campaign Laws, N.Y. TIMES (Apr. 2, 2014), (stating the FEC consistently fails to enforce campaign finance laws). In rare but extreme cases, the FEC has been able to act. See, e.g., Steve Benen, House Republican Faces Resignation Chatter after FEC Fine, MSNBC: MADDOWBLOG (May 18, 2015),

(245) See, e.g., 2015 FED. ELECTION COMM'N AGENCY FlN. REP.: FISCAL YEAR 2015, at 16,; see also Lichtblau, supra note 217 ("With the commission so often deadlocked, the major fines assessed by the commission dropped precipitously last year to $135,813 from $627,408 in 2013.").

(246) See, e.g., Strengthen Rules Preventing Candidate Coordination with Super PACs, BRENNAN CTR. FOR JUST. (Feb. 4, 2016),

(247) See FED. ELECTION COMM'N, Matter under Review 6002, In the Matter of Freedom's Watch, Inc.: Statement of Reasons of Chairman Matthew S. Petersen and Commissioners Caroline C. Hunter and Donald F. McGahn (Aug. 13, 2010).

(248) See generally Clint Richardson, The Fallacy of Congressional Ethics, WORDPRESS: REALITY BLOG (Sept. 12, 2014), (providing examples and criticisms of congressional ethics measures).

(249) See, e.g., Press Release, U.S. Attorney's Office S. Dist. N.Y., Former College President Indicted in Manhattan Federal Court for Campaign Finance Fraud (Jan. 23, 2014),; see also Josh Gerstein, D'Souza Enters Guilty Plea, POLITICO (May 20, 2014), (discussing a successful federal prosecution against illegal contributions).

(250) See, e.g., Chris Glorioso, Candidates Who Take Public Funds Rarely Pay Back Taxpayers, NBC N.Y. (Apr. 1, 2011),

(251) See generally Follow the Money, N.Y.C. CAMPAIGN FIN. BOARD, (last visited Sept. 21, 2016) (providing up-to-date information on candidate finance databases, summaries, and reports); see also Post-Election/Enforcement, N.Y.C. CAMPAIGN FIN. BOARD, (last visited Sept. 21, 2016) (providing information on campaign audit procedures).

(252) See Post-Election/Enforcement, supra note 251.

(253) See Calder Burgam, Best Practices for Disclosure of Local Candidates' Campaign Finance Data, F0LL0WTHEM0NEY.ORG (Sept. 23, 2015),

(254) See id.

(255) See generally Richard L. Hasen, Show Me the Donors, SLATE (Oct. 14, 2010), (discussing how disclosure laws can help bring inconsistencies or violations to light).

(256) See, e.g., EARLEY & VANDEWALKER, supra note 147, at 3-4.

(257) See generally John C. Bonifaz, Not the Rich, More Than the Poor: Poverty, Race, and Campaign Finance Reform, 8 POVERTY & RACE RES. ACTION COUNCIL (Sept./Oct. 1999), (discussing the influence of the rich and the exclusion of the poor within the campaign finance system and recommending a public financing system which puts wealthy and poor individuals on equal political ground).

(258) See, e.g., Malbin et al., supra note 31, at 12 (describing the importance of matching fund programs).

(259) See Rosenthal, supra note 63, at 223 ("Disclosure of campaign funds may play a role in any campaign finance system, but it is insufficient as a lone policy.").

(260) See, e.g., supra Part II(D); see generally McCutcheon v. PEC, 134 S. Ct. 1434, 1450 (2014) (citation omitted) (stating how efforts to 'level the playing field' have not occurred).

(261) See, e.g., MALBIN, supra note 35 (demonstrating how New York City's campaign fund matching system affected the role of small donors in the election).

(262) See generally id. at 3 ("[Matching programs] help shift the demographic and class profile of those who give.").

(263) See Schmitt, supra note 24.

(264) See L.A. MUN. CODE [section] 49.7.23 (2014); N.Y.C. ADMIN. CODE [section] 3-709.5 (2016).

(265) See, e.g., supra notes 39-42 (discussing a federal matching program that has support from politicians in both major political parties).

(266) See Nicole A. Gordon & Hyla Pottharst Wagner, The New York City Campaign Finance Program: A Reform that is Working, 19 FORDHAM URB. L.J. 605, 617, 620 (1991).

(267) See ARIZ. CITIZENS CLEAN ELECTIONS COMM'N ANN. REP., supra note 83, at 13, 14, 22; Cella & Howell, supra note 76.

(268) See Gordon & Wagner, supra note 266, at 617.

(269) See Roxana Tiron et al., Government Shutdown Begins as Deadlocked Congress Flails, BLOOMBERG (Oct. 1, 2013),

(270) See Lichtblau, supra note 217 ("[The Chairwoman of the FEC] said she was resigned to the fact that 'there is not going to be any real enforcement' in the coming election.").

(271) See Kennedy, supra note 149 ("[T]he Roberts Court has struck down each money in politics regulation that has come before it; McCutcheon v. FEC was the seventh case to strike down a campaign finance law since 2006.").

(272) See The Truth about Citizens United, REPRESENT.US, (last visited Sept. 22, 2016) (opining that constitutional amendments are difficult to pass and that even if Citizens United were overturned, it would not be the panacea some have been hoping for).

(273) A common derivation of: "[CJhance favors only the prepared mind." Louis Pasteur, Address at Inauguration of Faculty of Science, University of Lille (Dec. 7, 1854), in THE YALE BOOK OF QUOTATIONS 585 (Fred R. Shapiro ed., 2006).

(274) See, e.g., Melvin I. Urofsky, Campaign Finance Reform Before 1971, 1 ALB. GOV'T L. REV. 1, 55-56 (2008) ("[A]s the facts of how Nixon had raised and used money became public, it fed a growing public outrage...[that] grew so powerful that it enabled reformers in Congress to push through substantial changes to FECA....").

(275) See Nicholas O. Stephanopoulos, Aligning Campaign Finance Law, 101 VA. L. REV. 1425, 1446-47 (2015) (describing that the effect of the Court's rulings has been "misalignment" of the American political system); see also Michael S. Kang, The Brave New World of Party Campaign Finance Law. 101 CORNELL L. REV. 531, 546 n.67 (2016) (providing a collection of cases in which the Roberts Court struck down campaign finance reform).

(276) Kennedy, supra note 149.

(277) See J.B. Wogan, Maine Vote Offers Momentum for Keeping Elections Clean, GOVERNING (Nov. 4, 2015),

(278) Kennedy, supra note 149.

(279) Id.; see Andy Kroll, Reformers Launch $1 Million Ad Blitz Demanding "Fair Elections" Bill in New York State, MOTHER JONES (Feb. 24, 2014),

(280) See Richard Briffault, Home Rule and Local Political Innovation, 22 J. L. & POL. 1, 3 (2006) ("[B]ecause, typically, state laws address many aspects of local government structure and local elections, local political innovations are often subject to the claim that they are preempted by inconsistent state laws or state occupation of the field.").

(281) See id.

(282) See, e.g., Johnson v. Bradley, 841 P.2d 990, 991, 996 (Cal. 1992) (quoting California Fed. Sav. & Loan Ass'n v. City of Los Angeles, 812 P.2d 916, 925 (Cal. 1991)) (describing that the first step in a home rule analysis is determining whether there is an "actual conflict" between the state and local authority that is otherwise "unresolvable" without judicial decision of which authority is valid).

(283) See generally Briffault, supra note 280, at 17-18 (mentioning that local legislation can be enacted without express state authorization).

(284) See generally Press Release, Brennan Ctr. for Justice, Outside Spending by Special Interests Floods Judicial Elections at Record Percentage, Report Finds (Oct, 29, 2015), [hereinafter Press Release, Outside Spending] (emphasizing the importance of judicial elections).

(285) See Daniel Angster, 5 Years After Citizens United, Newspapers Fail To Cover Its Impact On Judicial Elections, MEDIA MATTERS FOR AM. (Jan. 21, 2015),

(286) See generally Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1667 (2015) ("[J]udges who personally ask for money [in judicial elections] may diminish their integrity....").

(287) See id. at 1666-67.

(288) Id. at 1667. In another case, the Supreme Court held that it violated due process for a state justice to deny a recusal motion when the opposing party had contributed $3 million to the justice's election campaign. See Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 884, 886, 887, 890 (2009). Williams-Yulee and Caperton might be stepping back from this view, as suggested by Republican Party v. White, in which the Supreme Court held that a state could not prohibit judicial candidates "from announcing their views on disputed legal and political issues____" Republican Party v. White, 536 U.S. 765, 788 (2002).

(289) See Williams-Yulee, 135 S. Ct. at 1662, 1673.

(290) See AJ Vicens, How Dark Money is Taking Over Judicial Elections, MOTHER JONES (Nov./Dec. 2014),

(291) Press Release, Brennan Ctr. for Justice, TV Ad Spending in Judicial Races Surpasses $9.1 Million (Oct. 24, 2014),

(292) Press Release, Outside Spending, supra note 284.

(293) See Blake Fleetwood, The Best Judge $3 Million Can Buy, HUFFINGTON POST: BLOG, (last updated May 25, 2011).

(294) Jim Yardley, Enron's Collapse: Texas Judge; Enron Ruling by Nominee to U.S. Court is Being Noticed, N.Y. TIMES (Jan. 22, 2002),

(295) A. G. Sulzberger, In Iowa, Voters Oust Judges over Marriage Issue, N.Y. TIMES (Nov. 3, 2010),

(296) See Andy Kroll, Is Your Judge For Sale?, MOTHER JONES (Nov./Dec. 2014),

(297) Id. Other information on gifts to judges from monied interests, free vacations on which judges are "educated," and the influence of money on judicial campaigns is also available from various sources. See, e.g., Editorial, Justice and Junkets, N.Y. TIMES (Jan. 27, 2006),; JUST. AT STAKE, (last visited Sept. 22, 2016) (providing information on campaign financing and spending).

(298) See Monica Davey, Campaign Money Tests Wisconsin Justices' Impartiality, N.Y. TIMES (Mar. 27, 2015),

(299) See Polling Excerpts, JUST. AT STAKE, (last visited Sept. 19, 2016).

(300) The Supreme Court has recently upheld modest restrictions on judges' political fundraising activity. See Adam Liptak, Supreme Court Upholds Limit on Judicial Fund-Raising, N.Y. TIMES (Apr. 29, 2015),]iams-yulee-florida-judicial-fund-raising-case.html'._.r=0; but see Gail Collins, Opinion, When Good News Is No News, N.Y. TIMES (Apr. 29, 2015), /30/opinion/gail-collins-when-good-news-is-no-news.html.

(301) See Public Financing, JUST. AT STAKE, (last visited Sept. 19, 2016).

(302) See id.

(303) See id.

(304) See Christie Thompson, Will Pennsylvania do Away With Elections for Supreme Court?, MARSHALL PROJECT,,,medium=email&utm_campaign=newsletter&utm_source=opening-statement&utn__term=newsletter-20151030-305#.RXI3BGLFF (last updated Nov. 3, 2015).

(305) See, e.g., Bill Corriher & Sean Wright, Dirty Money, Dirty Water, CTR. FOR AM. PROGRESS (Nov. 17, 2014),; infra Appendix B (reporting that the West Virginia legislature passed public funding only for state supreme court candidates, but not for legislative members).

(306) See Join the Debate: Driving the Conversation: A Constitutional Amendment to Reverse Citizens United?, POLITICO: THE ARENA (June 19, 2012), Under Article 5 of the U.S. Constitution, there are two routes to amend the Constitution: one via a state ratification process and the other through a constitutional convention. It is conceivable that the Congress could choose to convene a constitutional convention rather than use a state ratification process. In that case, though, there is the danger that a constitutional convention, which would open the door to discussion of the entire document, would be a nightmare of conflicting views and very possibly retrogressive changes. See U.S. CONST, art. V.

(307) See Anthony J. Gaughan, Ignorant Voters Are the Problem, U.S. NEWS (July 31, 2015),

(308) See N.H. REBELLION, (last visited Sept. 19, 2016).

(309) See Alexandra Jaffe, Man Taken into Custody after Landing Single-Person Aircraft on Capitol Grounds, CNN (Apr. 15, 2015),

(310) The Stamp Stampede, ROBGREENFIELD.TV, visited Sept. 22, 2016); see Paul Blumenthal, Here's How Ben & Jerry's Co-Founder Wants to Stamp Money out of Politics, HUFFINGTON POST (Feb. 2, 2014),

(311) See PLURIBUS PROJECT, (last visited Oct. 15, 2016).

(312) See FAQ: Price We All Pay Campaign, CAL. LEAGUE CONSERVATION VOTERS, (last visited Sept. 16, 2016).

(313) See Robert Carpenter, Republicans Should Join in Scuttling Citizens United, HILL: CONG. BLOG (Jan. 15, 2015), ("[V]oters favor a constitutional amendment by a 61-28 percent margin. Presented with arguments for and against an amendment, Republicans strongly favor the amendment--by a 54-36 percent margin."); Karin Kamp, Majority of Americans Want Money Out of Politics, MOYERS & COMPANY (Nov. 21, 2014), ("Democrats, Republicans and independents show very similar opposition rates [to Citizens United] at 61, 58 and 62 percent, respectively."); see also About: Who We Are, TAKE BACK OUR REPUBLIC, (last visited Sept. 15, 2016) (describing Take Back Our Republic, a non-partisan organization aimed at campaign finance reform).

(314) See, e.g., David A. Graham, GOP Candidates Discover the Problems with Money in Politics, ATLANTIC (Apr. 20, 2015),; Right On the Money (rightonmoney), TUMBLR, (last visited Sept. 24, 2016).

(315) See The Plan: Citizen Equality Act of 2017, LARRY LESSIG FOR PRESIDENT 2016, (last visited Oct. 15, 2016).

(316) See, e.g., Bump, supra note 16; Josh Voorhees, The Irony Is Rich: Hillary Clinton Might be Progressives' Best Hope at Campaign Finance Reform, SLATE (Apr. 15, 2015),,,and_politics/politics/2015/04/hillary_clinton_and_campaign_finance_reform_with_all_her_super_pac_money.html.

(317) See Blumenthal, supra note 16. Recently-elected President Donald Trump appeared to have changed his position during the campaign, as by the end of the 2016 election there existed at least one pro-Trump super PAC. See Danny M. Francis, Opinion, Trump Now Embracing Super PAC Money, WATERTOWN DAILY TIMES (May 14, 2016), In addition, President Trump eventually accepted outside contributions and substantial assistance from the National Republican Committee, causing him to lose his "self-funded candidate" status. See Monica Langley & Rebecca Ballhaus, Donald Trump Won't Self-Fund General-Election Campaign, WALL STREET J. (May 4, 2016),; see also Maggie Haberman et al., Donald Trump, in Switch, Turns to Republican Party for Fund-Raising Help, N.Y. TIMES (May 9, 2016), http://www.nytimes.eom/2016/05/l 0/us/politics/donald-trump-campaign.html?_r=0 (stating that Trump took steps to appropriate funds from the Republican National Committee).

(318) See Chris Christie on Government Reform, ONTHElSSUES, (last visited Sept. 24, 2016) (advocating for limits on PAC donations); Mike Huckabee on Government Reform, ONTHElSSUES, (last visited Sept. 24, 2016) (supporting campaign contribution limits but not public funding).

(319) See Matea Gold, Big Money in Politics Emerges as a Rising Issue in 2016 Campaign, WASH. POST (Apr. 19, 2015),

(320) Carpenter, supra note 313.

(321) See CED's Longstanding, Nonpartisan Call to Action on Money in Politics, COMMITTEE FOR ECON. DEV. (NOV. 22, 2013),

(322) See Issues: Election Integrity, AM. SUSTAINABLE BUS. COUNCIL, (last visited Sept. 16, 2016).

(323) See, e.g., Fight Corruption in America: Stop Political Bribery, End Secret Money, & Give Voters a Stronger Voice, AM. ANTI-CORRUPTION ACT, visited Oct. 15, 2016) (outlining requirements in the proposed American Anti-Corruption

(324) See MD. CODE ANN., TAX-GEN. [section] 2-113.1 (LexisNexis 2016) (providing Maryland's statutory income tax checkoff provision for the Fair Campaign Financing Fund).

(325) See MD. CODE ANN., ELEC. LAW [section] 13-226 (LexisNexis 2016); Summary of Public Campaign Financing Laws, MD. ST. BOARD ELECTIONS, (last visited Sept. 28, 2016).

(326) See William F. Zorzi Jr., Campaigns Shun Public Financing Aid, Most in the Race for Governor Reject Limits on Spending, BALT. SUN (May 17, 1998), http://articles.baltimore; Progress Report: Empower Small Donors, Public Campaign Funding, RECLAIM AM. DREAM, (last visited Sept. 28, 2016).

(327) See J.T. Stepleton, 2014 Candidate Elections Overview, FOLLOWTHEMONEY.ORG (Oct. 23, 2015),

(328) See John Wagner, Republican Larry Hogan to Use Public Funds in Campaign for Governor of Maryland, WASH. POST (July 9, 2014),

(329) See Ben Nuckols, House Race No Easy Comeback for Ex-Lieutenant Gov. Anthony Brown, NBC WASH. (Apr. 14, 2016),

(330) See Cella & Howell, supra note 76.

(331) See id.; see also Wagner, supra note 328 (discussing Hogan's participation in the public financing system).

(332) See Md. Emphasizes Disclosure in Campaign Finance, CBS BALT. (Apr. 13, 2013),

(333) See MD. CODE ANN., ELEC LAW [section] 13-505 (LexisNexis 2016) (establishing Maryland's public campaign financing system, passed in 2013 and effective as of January 1, 2015).

(334) See Editorial, A Montgomery County Campaign Finance Bill Empowers Small Donors, WASH. POST (Sept. 13, 2014), lle4-8601-97ba88884ffd_story.html?utm_term=.311185c64a73.

(335) Bill Turque, Montgomery Council Approves Plan for Public Finance of Local Campaigns, WASH. POST (Sept. 30, 2014),

(336) See Lynsi Burton, Seattle is Giving Residents Money to Make Political Donations--Two States Follow, YES! MAG. (Aug. 25, 2016),

(337) See Memorandum from Robert H. Drummer & Josh Hamlin, Legislative Attorneys, to the Gov't Operations & Fiscal Policy Comm. (Mar. 13, 2014),

(338) See Turque, supra note 335; see also Robert Drummer, Senior Legislative Attorney, Montgomery Cty. Council, Presentation on Montgomery County's Public Campaign Financing Law, (last visited Sept. 27, 2016) (establishing specific contribution limits for candidates running for specific offices).

(339) See Higgins, supra note 49. The initiative also imposes new disclosure requirements and increases the penalties for violations of the state's campaign finance laws. See Deborah McDermott, Maine Group Looks to Revive Campaign Finance Reform, SEACOAST ONLINE(Jan. 11, 2015),

(340) See McDermott, supra note 339.

(341) See Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721, 727-28, 754-55(2011).

(342) See McDermott, supra note 339.

(343) The Maine Clean Election Act, supra note 44; see also McDermott, supra note 339 (describing Maine Citizens for Clean Elections' petition to require candidates to receive more donations in order to receive additional funding).

(344) See McDermott, supra note 339.

(345) See Levine, supra note 77.

(346) See Chicago Mayoral Candidates Back Fair Elections Ballot Measure, PROGRESS ILL. (Feb. 12, 2015),

(347) See Levine, supra note 77; Chicago Mayoral Candidates Back Fair Elections Ballot Measure, supra note 346.

(348) See Levine, supra note 77; Chicago Mayoral Candidates Back Fair Elections Ballot Measure, supra note 346; Press Release, Common Cause, Common Cause Hails Chicago Vote to Rein in Big Money in Politics (Feb. 24, 2015),

(349) See J.B. Wogan, Seattle Voters Reject Public Financing of Council Campaigns, GOVERNING (NOV. 6, 2013),

(350) See id.

(351) See Ansel Herz, Campaign Finance Reform Rejected by Seattle City Council, STRANGER: SLOG (June 30, 2014), /06/30/campaign-fmance-reform-rejected-by-seattle-city-council.

(352) See id.

(353) See Daniel Beekman, Seattle Initiative Drive Seeks Public Campaign Financing Reform, SEATTLE TIMES (Apr. 3, 2015),; Kroman, supra note 60.

(354) See Beekman, supra note 353; Kroman, supra note 60.

(355) See Beekman, supra note 353; Kroman, supra note 60.

(356) See Jill Terreri, Council to Explore Public Campaign Financing, BUFFALO NEWS (May 28, 2014),

(357) See id.

(358) See Patrick McGreevy, Gov. Brown Signs Bill to Shed Light on Political 'Dark Money,' L.A. TIMES (May 14, 2014),

(359) See id.

(360) See id.; see also S. B. 27, 2014 Reg. Sess. (Cal. 2014) (providing the text of the law).

(361) See Karen Crummy, Dem-Friendly Committees Reap $1.5 Million in Anonymous Gifts, DENVER POST (Aug. 31, 2006),

(362) See COLO. SEC'Y STATE, supra note 205, at 20-21.

(363) See Crummy, supra note 361.

(364) See Paul Blumenthal, Tallahassee Voters Said No to Big Money, Corruption in City Politics, HUFFINGTON POST (Nov. 4, 2014),

(365) See id.

(366) See id.; see also About Us, REPRESENT.US, (last visited Oct. 1, 2016) (providing background information about Represent. Us as well as the initiatives that the organization supports, such as the American Anti-Corruption Act).

(367) See Dan Christensen, An Election Result You Likely Missed: Anti-Corruption Referendum Wins Big in Tallahassee, FLA. BULLDOG (Nov. 18, 2014),; Josh Silver, One Community Beat Big Money on Election Day. Here's How They Did It., HUFFINGTON POST: BLOG (NOV. 6, 2014), http://www.huffington

(368) See Leigh Hartman, Philadelphia Regulation Attempts to Reign in Coordinated Spending, BRENNAN CTR. FOR JUST.: BLOG (Nov. 7, 2014),

(369) See id.

(370) See, e.g., PHTLA. BD. OF ETHICS, REG. No. 1(H)(1.38) (2016) ("An expenditure is coordinated with a candidate's campaign if...[t]he candidate's campaign has solicited funds for or directed funds to the person making the expenditure....").

(371) Hartman, supra note 368.


(373) See id. at 11.


(375) See id. at 21.

(376) See N.Y.C. LOCAL LAW NO. 41 (2014); Independent Spender Guide, supra note 146; NYC Says No to "Dark Money"Elections, supra note 140.

(377) See N.Y.C. LOCAL LAW No. 41.

(378) See id.

(379) See id.

(380) See Gregory B. Hladky & Daniela Altimari, Flood of Outside Money Prompts Calls for Campaign Finance Reforms, HARTFORD COURANT (Jan. 11, 2015),, html.

(381) See id.

(382) See id.; see also Mark Pazniokas, Can Connecticut's Campaign Finance Reforms Be Saved?, CT MIRROR (Jan. 19, 2015), (describing different reform proposals by legislators).
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