Document Type

Article

Publication Date

2015

Disciplines

Constitutional Law | Law | Law and Politics

Abstract

This article explores some aspects of the distinction between constituents and contributors and the implications of the constituent-contributor relationship for campaign finance law and democratic self-government. Part I provides a brief overview of the role of non-constituent donors in financing contemporary election campaigns. It finds that non-constituents provide the bulk of itemized individual contributions – that is, donations of $200 or more-to candidates for Congress. The data concerning non-constituent donations in state and local elections is more anecdotal than systematic, but there is considerable evidence that non-constituent, particularly out-of-state, money plays a large part in financing state and local elections too. At all levels of government, there is a significant disconnect between the categories of contributor and constituent.

Part II considers the implications of substantial non-constituent contributions for the American system of territorially-based representation and democratic self-government. Given the potential for officeholder responsiveness to donors celebrated by the Chief Justice, contributors, in effect, have become another constituency that elected representatives represent. There may be some value to this, particularly in races for Congress, where the results of elections in some states or districts can affect the partisan control of the House of Representatives or Senate and, thus, have nationwide implications. Even here, though, non-constituent financing can have an impact on how representatives represent their actual constituents. The tension between constituent and contributor representation is even greater when campaigns are funded by donors from outside the relevant jurisdiction. That occurs, for example, when out-of-state residents contribute to candidates for state office. They belong to a different political community than the elected representatives and they are not directly regulated by the laws enacted and enforced by the voters or representatives of that community. To be sure, with the growing nationalization and partisanship of elections, outsiders may have a strong subjective interest in a state or local race in a distant jurisdiction even if, objectively, they are not governed by the results. But the emergence of a substantial non-constituent constituency poses a significant challenge to our system of representation which is based almost entirely on the use of territorial constituencies-states, cities, and legislative districts-for the election of representatives and the processes of democratic self-government.

With outsider contributions potentially shifting the focus of elected representatives away from the concerns of their voting constituency, a handful of jurisdictions – all of them relatively small states – have sought to reduce the role of outside money in state and local elections. Part III reviews these campaign finance measures and the court decisions that have considered challenges to them. Limits on the contributions a candidate for state office may accept from outsiders have been generally, albeit not uniformly, struck down. Such restrictions on outside contributions are almost certainly unconstitutional, but, as I will indicate, state and local public financing systems that make candidate eligibility for public funds contingent on raising a threshold number of small donations from constituents are a constitutional and potentially useful means of ameliorating the impact of outside money by reducing its importance.

Part IV concludes by considering what the Chief Justice's invocation of constituency and the concept of self-government says about the state of contemporary campaign finance doctrine. The Roberts Court has consistently emphasized the speech and associational dimensions of campaign finance. A five-justice majority of the Court has likened efforts to limit campaign money to government censorship," and has rejected the argument that regulation may be used to prevent big money from distorting the electoral process. In their view, contributions and spending, even if unequal, play a valuable role in communicating positions on electoral issues and expressing support for candidates. Only campaign contributions that pose the danger of quid pro quo corruption or its appearance may be limited. The McCutcheon result, which maintains the base limits on donations to candidates, is easily defended on such free speech grounds, as much of the plurality opinion demonstrates.

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