Political Spending

Conventionally understood, campaign finance reform is a matter of public regulation. This Article seeks to shift campaign finance discourse toward private ordering. Because scholars and reformers have long focused on public regulation, they have largely overlooked possible private correctives. The Article maps that uncharted terrain, revealing an array of extra-legal mechanisms that at least somewhat constrain money’s electoral clout.

Every campaign season brings renewed attention to the amount of money influencing American politics, and who is spending it, and for what purposes. In particular, people are concerned about what is called “dark money.” The term sounds scary and raises the specter of shadowy people manipulating the nation’s politics. This piece unpacks what dark money is, what concerns it raises and what might be done to address it.

This Article challenges the prevailing, bifurcated approach to voting and spending law. Its central thesis is that the law's disparate treatment of voting and spending is unjustified. Voting and spending are, at bottom, two methods of participating in the electoral process. Conceiving of them as two aspects of a broader right to participate -- a right the Supreme Court recently articulated, but did not develop, in McCutcheon v. FEC -- offers a principled basis to harmonize voting and spending law and reorient election law discourse.