GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2020

Status

Accepted

Abstract

Outside spending has increased dramatically since 2010, exceeding the rate of increase of total federal campaign spending and even accounting for more spending than did the candidates in more than 120 competitive races in the last decade. This essay outlines the detrimental effects of these developments on candidates, campaigns, and institutions, e.g., an increased threat of corruption, intensified political polarization, marginalization of political parties, and increasing levels of negative advertising. Because of the rapid rate at which outside spending is increasing, the trajectory of these adverse impacts threatens the integrity of political campaigns in 2020 and future elections.

Doctrinal changes introduced by Citizens United and SpeechNow.org have enabled, even invited, the rise and proliferation of campaign vehicles that can raise unlimited sums, often from a small group of high-wealth donors and often with no disclosure or sham disclosure. Ideally the doctrines in question would be reversed or rendered less potent through judicial or legislative actions. This essay argues, however, that in the absence of such judicial or legislative action, there are at present numerous laws on the books that, if enforced by the FEC and IRS, would greatly reduce the undesirable consequences of the rapid increase in outside funding and dark money. It details those laws, and it elaborates and counters the arguments that some have raised to implementing them as the lawmakers that enacted them intended. In short, if the two agencies commit today to enforcing the law as written, the worst excesses of the current electoral process would be meaningfully redressed.

GW Paper Series

2020-77

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