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Beyond Campaign Finance Reform
Boston College Law Review (2016)
  • Tabatha Abu El-Haj
The average American voter is apathetic, ignorant and polarized, or so we are told. Except, it turns out, with respect to her views on the outsized political influence of the super wealthy: poll after poll reveals a bipartisan consensus that wealthy interests exert too much political influence and there is good evidence to support these concerns. While the public blames the Supreme Court’s decision in Citizens United v. FEC for this situation, experts in the field know that the constitutional constraints on our ability to limit the political influence of moneyed elites long-predate Citizens United and pose a formidable barrier to effective campaign finance reform. Nevertheless, the most consistent calls in legal circles are for just that, more campaign finance reform.

This Article argues that it is time for those serious about curtailing the influence of money on politics to recognize that the struggle for effective campaign finance reforms has run its course. Renewed democratic accountability will require an organized, informed and representative electorate. Election lawyers should, therefore, begin the process of reimagining their roles. It is time for the field to come to grips with the evidence that our apparent crisis of representation arises out of profound social and political changes since the 1970s, foremost among them, the transformation of civic associations. More specifically, it is time to wrestle with the evidence that this transformation resulted from legal choices and changes. 

Our focus needs to shift to the ways that law might encourage civic reorganization and facilitate representative turnout -- just getting voters out on election days is too little too late. Enhanced democratic accountability will require both an organized and informed electorate and a broad and representative one, especially in during party primaries. Increasing the representativeness of the electorate that turns out to vote, therefore, must remain a key priority for the field of election law. 

In making this argument, the Article defends two controversial claims: First, the First Amendment tradition poses a formidable barrier to curtailing the influence of moneyed interests regardless of the composition of the Court. Second, the widespread skepticism in the field that the electorate can be a source of democratic accountability is overdrawn: The fact that voters, as individuals, are incapable of monitoring elected officials does not foreclose the possibility that voters, as groups, could demand democratic responsiveness. In fact, the historical record reveals that ordinary citizens can exercise influence over the officials elected to represent them when they are well organized and vote.
  • Campaign Finance,
  • Buckley v. Valeo,
  • Citizens United v. FEC,
  • First Amendment,
  • Voter turnout,
  • Elections,
  • Primary Elections,
  • Civic Associations,
  • McCutcheon v. FEC,
  • Election Law,
  • Law of Democracy,
  • U.S. Politics,
  • Wealth Inequality,
  • New Gilded Age
Publication Date
Citation Information
Tabatha Abu El-Haj. "Beyond Campaign Finance Reform" Boston College Law Review Vol. 57 (2016) ISSN: 0161-6587
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