Franita Tolson (Florida State University - College of Law) has posted The Federalism Implications of Campaign Finance Regulation (University of Pennsylvania Law Review Online, Vol. 164 (2016)) on SSRN. Here is the abstract:
Recent controversies in campaign finance have generated concerns that wealthy donors will dominate the political landscape, with Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission standing as the high‐water marks in the U.S. Supreme Court’s jurisprudential turn towards deregulation. This short Essay puts this case law in perspective by briefly explaining how our system of federalism gives the states more authority than Congress to restrict campaign spending.
Unlike the federal government, with its system of checks, balances, and “veto gates” that make it difficult to enact legislation, states have a more compelling interest in countering the appearance of corruption and accounting for the distorting influence that money can have in skewing public debate over policies. Because of direct democracy, in particular, these policies are easier to enact than federal law and therefore are more susceptible to being co‐opted by special interests. While this Essay takes no position on the wisdom of direct democracy, it argues that the Court can help ensure that the states’ constitutionally sanctioned choice of direct democracy actually effectuates the preferences of the majority of the electorate by broadening the case law’s current conception of anticorruption and resuscitating the recently deceased antidistortion rationale. In limiting the states’ ability to defend their campaign finance regimes, the Court has not considered that these justifications safeguard the political equality that is vital to the success of direct democracy systems. Thus, defenders of state campaign finance regulations may find greater success by arguing that states have an additional and powerful compelling interest in regulating campaign spending because of its impact on direct democracy.