Article

Aligning Campaign Finance Law

“You have some ideological extremist who has a big bankroll and they can entirely skew our politics.” –Barack Obama, Press Conference, October 8, 2013

Here are some facts about money and politics in today’s America. At the federal level, campaign spending totaled $7.3 billion in 2012. Almost all of this funding came from individual donors, not corporations or unions.Individuals gave about half of their contributions to specific candidates, a quarter to political parties, and a quarter to Political Action Committees (“PACs”) and Super PACs.  These donors were in no way representative of the country as a whole. They were heavily old, white, male, and, of course, wealthy. They also were far more polarized in their political views than the general population. Most Americans were moderates in 2012, but most donors were staunch liberals or conservatives.

However, there is no evidence that much of this money is traded explicitly for political favors. Proof of quid pro quo transactions is vanishingly rare, and studies that try to document a link between PACs’ contributions and politicians’ votes typically come up empty. But there is evidence that politicians’ positions reflect the preferences of their donors to an uncanny extent. The ideal points of members of Congress—that is, the “unique set[s] of policies that they ‘prefer’ to all others”—have almost exactly the same bimodal distribution as the ideal points of individual contributors. They look nothing like the far more centrist distribution of the public at large.

Suppose a jurisdiction is troubled by this situation and decides to enact some kind of campaign finance reform. What reason might it give? One option is preventing the corruption of elected officials. But the Supreme Court has recently narrowed the definition of corruption to quid pro quo exchanges, and, as just noted, such exchanges do not occur with any regularity in contemporary America. Another possibility is avoiding the distortion of electoral outcomes due to the heavy spending of affluent individuals (and groups). But the Court has emphatically rejected any governmental interest in ameliorating “the corrosive and distorting effects of immense aggregations of wealth.” Yet another idea is equalizing the resources of candidates or the electoral influence of voters. But this equality interest has been deemed invalid in even more strident terms. “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

So is our reformist jurisdiction out of luck? Not quite. This Article’s thesis is that there is an additional interest, of the gravest importance, that both is threatened by money in politics and is furthered by (certain) campaign finance regulation. This interest is the promotion of alignment between voters’ policy preferences and their government’s policy outputs. Alignment operates at the levels of both the individual constituency and the jurisdiction as a whole. Within the constituency, the views of the district’s median voter and the district’s representative should align. One step up, the preferences of the jurisdiction’s median voter and the legislature’s median member should correspond. Moreover, at the jurisdictional level, the median voter’s views should be congruent not only with the median legislator’s positions, but also with actual policy outcomes. Preference alignment refers to the former sort of congruence; outcome alignment to the latter.

Alignment is a significant—indeed, compelling—interest because of its tight connection to core democratic values. At the district level, it follows closely from the delegate theory of representation. A delegate “must do what his principal would do, must act as if the principal himself were acting . . . must vote as a majority of his constituents would,” as Hanna Pitkin wrote in her landmark work. In other words, a delegate must align his own positions with those of his constituents. Likewise, at the jurisdictional level, alignment is essentially another term for majoritarianism. To say that policy should be congruent with the preferences of the median voter is to say that it should be congruent with the preferences of the voting majority. Of course, majoritarianism is not our only democratic principle. But, as Jeremy Waldron has argued, it is “required as a matter of fairness to all those who participate in the social choice.”

Unsurprisingly, given its democratic roots, the concept of alignment has surfaced repeatedly in the Court’s campaign finance decisions. In a 2000 case, the Court recognized “the broader threat from politicians too compliant with the wishes of large contributors”—and not compliant enough with the wishes of voters. In a 2003 case, the Court warned of “the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions.” And in its most recent campaign finance decision, McCutcheon v. FEC, a decision otherwise unremittingly hostile to regulation, the Court strikingly concluded its opinion with a paean to alignment. “Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.”

Despite these doctrinal hints, some scholars claim that alignment is a forbidden interest in the campaign finance context. Kathleen Sullivan reasons that alignment reflects a particular theory of democracy, and that speech cannot be restricted based on “one vision of good government.” Similarly, Robert Post contends that in the First Amendment domain of public discourse, public opinion is forever changing shape. Thus “[t]here is . . . no ‘baseline’ from which [misalignment] can be assessed.” These critiques are misplaced. As to Sullivan, it might be controversial for the Court to embrace a specific model of democracy, but surely a popularly elected legislature may do so. In fact, legislatures adopt theories of self-governance all the time, both when they regulate money in politics and when they enact other electoral policies. As to Post, public opinion actually is not as fluid as he suggests, and alignment furthers what he deems the crucial aim of public discourse: making “persons believe that government is potentially responsive to their views.” It is unclear as well why electoral speech should be considered part of public discourse rather than the managerial domain of elections, in which speech may be regulated to serve the domain’s ends.

Even if alignment is not a forbidden interest, it may be a duplicative one. As Richard Hasen has argued, it may be nothing more than a slick repackaging of the anti-distortion or equality interests that the Court already has rejected. This charge also misses its mark. The distortion that cannot justify campaign finance regulation, in the Court’s view, is the skewing of electoral outcomes due to large expenditures. The Court has never suggested that the warping of policy outcomes due to large contributions (or their equivalent) is an illegitimate basis for regulation. The distortion of voters is different from that of representatives.

Alignment also is distinct from equality (in all its guises). One form of equality is the leveling of candidate resources. But candidates need not be equally funded to produce alignment, nor does alignment follow from evenly sized war chests. Another kind of equality is equal representation for all voters. But it is only the median voter, not every voter, who is entitled to congruence under the alignment approach. Alignment at the median can arise only if there is misalignment at all other points in the distribution. A final type of equality is equal voter influence over the political process. But equal influence is, at most, a means to achieving alignment. It is not the end itself. Alignment also is possible under conditions of unequal influence, and equal influence does not necessarily result in alignment.

Assume, then, that alignment is a compelling interest that neither is barred by First Amendment theory nor is identical to goals the Court already has rebuffed. We are not done yet. The next step is to determine whether money in politics can generate misalignment, and whether campaign finance reform can promote alignment. According to a burgeoning political science literature, the answer to both questions is yes, at least sometimes. The relevant empirical evidence fits into three categories.

First, according to numerous studies, wealthy Americans have more influence on politicians’ voting records and actual policy outcomes than do poor or middle-class Americans. This extra sway is evident whether House or Senate voting records, or state or federal policy outcomes, are considered. It also appears even after non-monetary forms of political participation (voting, volunteering, contacting officials, etc.) are controlled for. Second, as noted at the outset, politicians and donors have nearly identical ideal point distributions: highly bimodal curves in which they cluster at the ideological extremes and almost no one occupies the moderate center. Voters’ views, in contrast, exhibit a normal distribution whose single peak is in the middle of the political spectrum. It is fair to say that donors receive exquisitely attentive representation—and that voters receive virtually no representation at all.

Third, campaign finance regulation can be aligning or misaligning based on its implications for how candidates raise their money. Tight individual contribution limits reduce the funds available from polarized individual donors. They therefore encourage candidates to shift toward the ideological center, the home of the median voter. Conversely, stringent party or PAC contribution limits have the opposite effect. Both parties and PACs are relatively moderate in their giving patterns—parties because their chief goal is winning as many seats as possible, PACs because they want access to incumbents of all political stripes. Reducing the funds available from these more centrist sources thus incentivizes candidates to move toward the ideological fringes. As for public financing, its impact hinges on its treatment of individual donors. “Clean money” schemes that provide block grants to candidates after they receive enough individual contributions are misaligning because of the extremism of the donors who initially must be wooed. But multiple-match systems that offer high matching ratios for small contributions may be aligning because of the more representative pool of donors they attract.

What do these findings mean for the constitutionality of different policies? Individual contribution limits would sit on sturdy legal ground under the alignment approach. Whatever their link may be to the prevention of corruption, they demonstrably further the governmental interest in alignment. Unlike under current law, individual expenditure limits also might survive judicial scrutiny. Since politicians mirror the views of not only individuals who donate directly to them, but also individuals who spend on their behalf, no great significance would attach to the contribution/expenditure distinction. Public financing that relies on individual donors who resemble the general population (or that does not rely on individual donors at all) would be valid as well. On the other hand, contribution and expenditure limits for parties and PACs could not be sustained by reference to alignment. Since these entities are relatively moderate, their funds exert little misaligning pressure. Public financing that requires appeals to polarized individual donors also could be justified only on the basis of other interests.

The Article proceeds as follows. Part I introduces the alignment interest. It describes the different forms of alignment, explains the role the concept has played in earlier campaign finance cases, and responds to the claim that general First Amendment principles proscribe the interest. Part II argues for the distinctiveness of alignment. It compares alignment to the interests the Court already has considered—anti-corruption, anti-distortion, and equality—and shows that it is different from each of them. Part III conveys the current state of knowledge about alignment. It summarizes the many studies on the misaligning influence of money in politics, as well as the fewer studies on the aligning impact of (some) regulation. Lastly, Part IV assesses the implications of this literature for the validity of different policies. Individual contribution and expenditure limits, and certain kinds of public financing, should be upheld because they promote alignment. But contribution and expenditure limits for parties and PACs, and other kinds of public financing, cannot be justified on this basis.

One final question should be answered before proceeding further. Given the array of interests already asserted in the campaign finance context, is there really a need for another one? In fact, the need is dire, for two reasons. First, the only interest the Court currently considers to be legitimate—the narrowly construed anti-corruption interest—neither captures the full extent of the harm caused by money in politics, nor is sufficient to sustain most campaign finance regulation. In recent years, policies have toppled like dominos, rejected by the Court due to a lack of fit with this interest. If the reform project is to avoid collapsing entirely, we must, in Michael Kang’s words, “look[] beyond the prevention of corruption as defined by the Court.”

Second, the misalignment produced by electoral fundraising and spending is not holding steady. Instead, it is getting worse. Over the last generation, the share of campaign funds provided by the wealthiest 0.01% of Americans has surged from about 10% to more than 40%. During the same period, individual donors steadily have become more extreme in their political views, and candidates steadily have become more dependent on their contributions. As a result, the representational gap in favor of the affluent is now five times larger than it was in the 1970s and 1980s. Misalignment thus is not a problem that can safely be ignored. Rather, it is a problem that—increasingly—threatens to swallow American democracy.

Reading Statutes in the Common Law Tradition

There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters often claim the Anglo-American common law heritage supports their approach to statutory interpretation, and that formalism is an unjustified break from that tradition. Many formalists reply that the common law mindset and methods are obsolete and inimical to a modern legal system of separated powers. They argue that because the legal center of gravity has shifted from courts to complex statutory regimes, judicial interpreters, especially at the federal level, should no longer understand themselves as bearers of the common law tradition.

Thus, Judge Guido Calabresi’s case for judicial updating of outmoded legislation presents itself as A Common Law for the Age of Statutes, while Justice Scalia celebrates how interpretive formalism imposes discipline on Common-Law Courts in a Civil Law System. This dichotomy is not unique to the federal context. Judith Kaye, writing as Chief Judge of the New York Court of Appeals, rejected a Scalia-style formalism based on her court’s role as a “keeper[] of the common law.” By contrast, Michigan Supreme Court Chief Justice Robert Young Jr., a textualist, rejects Chief Judge Kaye’s approach because statutory interpretation is “not a branch of common-law exegesis.” If anything, rhetoric on common law and statute is more dramatic at the state level, with Chief Judge Kaye offering paeans to “the common law, that ‘golden and sacred rule of reason,’” while Chief Justice Young likens the common law to a “drunken, toothless ancient relative” who has overstayed his welcome.

Contemporary debate in statutory interpretation offers a choice between either continuity with the common law tradition (and thus, creative statutory interpretation) or formalist interpretation that breaks with that heritage. As with much conventional wisdom, this framework captures a good deal of truth. Nevertheless, those who accept this neat frame, including myself in past work, miss an important part of the picture. As this Article will argue, formal theories of interpretation like textualism, which today generally distance themselves from the common law tradition, can claim support in that heritage. Furthermore, nonformal approaches to statutory interpretation rely on a partial, controversial vision of the common law tradition. A more nuanced understanding of traditional common law thought undercuts an important justification for nonformal theories of statutory interpretation—namely their continuity with our common law legal tradition. More broadly, we need not understand the debate between formalists and their critics as a disagreement about the common law tradition’s continued validity; rather, it concerns which interpretation of that tradition best suits a modern, complex polity.

To establish these points, this Article takes up central ideas that classical common lawyers held about legislation, interpretation, and the legal system to show how these notions recommend formal, faithful agency in statutory interpretation. The central relevant feature of classical common law thought is its participants’ understanding of their practice as the disciplined refinement and embodiment of a polity’s customs and beliefs. Law, in a common law system, rose up from the practices and beliefs of the people, rather than descending in systematic form from the will of a ruling cadre. This understanding unified the common law justification for law developed in adjudication and legislation alike. In fact, the common law method of adjudication—with its reactive and incremental development of law through structured argument—anticipates the formal, rule-laden, and nonsystematic manner in which American legislatures today translate popular norms and preferences into statutes. Common law adjudication and common law legislation pursue similar ends in analogous fashion.

Advocates of nonformal statutory interpretation take this congruence as a cue for courts to depart from faithful agency in the development of statutory regimes. This standard, antiformalist move is a misapplication, or at least a controversial reading, of the common law tradition itself. Common law legislation by its nature is often a product of untidy compromises necessary to secure supermajority support, and is rooted in reasoning that is difficult for outsiders to reconstruct after the fact. If legislation is a modern iteration of common law lawmaking, dynamic interpreters who seek to update or smooth the rough corners of statutes resemble classical common lawyers’ archrivals: philosophers and royalists who sought to rationalize the untidy warrens of common law doctrine. Like those academic lawyers who sought to privilege their isolated reasoning over the shared wisdom of the common law, a dynamic interpreter puts herself in the position not only of a legislator, but a legislature, whose translation of public views and practices into concrete norms she as an individual cannot replicate. By contrast, classical common law lawyers contended their lay competitors’ natural reason was inferior to the disciplined, shared “artificial reason” of the common law in identifying and integrating the common customs of the people. Interpretive formalists respect the artificial reason of common law legislation when refusing to upset awkward legislative compromises or update statutes to comply with contemporary values.

In this light, the central disagreement between formalists and their opponents is an argument within the common law tradition about the deference courts owe to the legislature, an institution that also identifies and translates social norms into common—shared—law. An interpretive formalist can see the legislature as the culmination of the common law tradition, not its nemesis. Accordingly, while such formalists need not reject judicial development of common law in the absence of legislative direction, they defer to reasonably clear statutory norms out of respect for the legislature’s superior and inimitable process of forging shared norms. To be clear, the formalist argument is a development of the classical common law tradition, not a secret history. Nevertheless, the mindset of the interpretive formalist coheres with central ideas in classical common law theory and can be seen as the natural development of a tradition that has increasingly linked law with popular custom and consent. In fact, given the challenges a complex, pluralistic society poses to developing common law through adjudication, the formalist’s emphasis on legislative primacy may be necessary for the tradition to survive.

One final note on scope: This work leaves for another day the role of administrative agencies in statutory interpretation and the common law tradition. To some, agencies are today’s true practitioners of the common law. To others, they represent an anathematic return to the Star Chamber. Unpacking this analysis’s implications for the fourth branch of government is neither obvious nor trivial and deserves a separate work.

The Article will proceed as follows. Part I will catalog the received wisdom that our common law heritage presses against formal approaches and in favor of more dynamic methods. Part II will offer a fresh look at the relationship between the common law and legislation, arguing that important figures in the common law tradition championed parliamentary legislation and understood it as an important source of common law. The common law, in fact, plays a central role in a broader conception of law that views law as ascending from the people, rather than descending from a select few. Legislation by assembly, like common law adjudication, aspires to identify and channel popular custom into formal law.

Part III will explicate a theory of legislation as a form of common law. It picks out key features of classical common law theory—the “artificial reason of the law” and its development—and explains how they are manifest not only in adjudication, but also in the style of legislation by American assemblies. Part IV will unpack the interpretive implications of legislation in common law style. In particular, it identifies important breaks between today’s dynamic statutory interpreters and the common law tradition, while also highlighting unappreciated affinities between that heritage and more formal approaches to legislation. Part V will step back to underline mutually reinforcing features of the common law tradition and statutory formalism. From this broader perspective, the statutory formalism’s deference appears a faithful development of the common law tradition and an advance on the more juriscentric versions championed by dynamic interpreters.

Taking Care of Federal Law

Article II of the Constitution vests the “executive power” in the President and directs the President to “take Care that the Laws be faithfully executed.” But do these provisions mean that only the President may execute federal law? Two lines of Supreme Court precedent suggest conflicting answers to that question. In several prominent separation-of-powers cases, the Court has suggested that only the President may execute federal law: “The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws.” Therefore, the Court has reasoned, Congress may not create private rights of action that allow nonexecutive actors to sue and attempt to vindicate the “public interest in . . . compliance with the law.”

Yet in another set of cases, the Court has suggested that the enforcement of federal law should be a shared enterprise not exclusive to the President. Specifically, the Court has gone out of its way to preserve the states’ ability to enforce federal law, repeatedly invoking the presumption “that Congress does not cavalierly pre-empt state-law causes of action.” Indeed, the Court occasionally reasons that state law is not preempted because “state law . . . simply seeks to enforce” federal law. What is striking about these cases is that they do not engage with the potentially troubling separation-of-powers implications that the Court raises in other contexts where Congress permits nonexecutive actors to enforce federal law. More than that, the preemption cases rest on a fundamentally different understanding of what the execution of federal law should look like. The preemption cases are driven by the intuition that the enforcement of federal law should occasionally be a shared enterprise, and that it is sometimes desirable to limit the President’s enforcement discretion. Indeed, the Court has championed the states’ ability to challenge the President’s assessment of what constitutes the “effective enforcement” of federal law.

In light of the disconnect between these two lines of precedent, this Article questions whether Article II should be understood to require the President alone to execute federal law. Specifically, it argues that Article II does not require the President alone to vindicate the public’s shared interest in the enforcement of federal statutes. Many of the cases addressing this issue are concerned with questions of standing, specifically with whether there are limits on Congress’s power to authorize private citizens to sue to enforce federal law. Standing doctrine requires a litigant to show she has suffered an “injury in fact” before a federal court will hear her claim, and while many scholars have analyzed when a statutory violation constitutes an injury in fact for purposes of standing, the relevant literature has failed to appreciate how standing doctrine is derived in part from the Take Care Clause and Article II. This omission has led the existing critiques to overlook cases and statutes where nonexecutive actors routinely execute federal law.

By highlighting the Article II origins of standing doctrine, this Article calls attention to a different set of sources not considered in the literature on standing. And these sources illustrate that one major premise of standing doctrine—that only the President vindicates the public’s shared interest in the enforcement of federal law—is false. In particular, recent preemption cases and several different federal statutes show that nonexecutive actors routinely execute federal law. These sources therefore provide a new and powerful reason to question both the Court’s premise that the President alone must oversee the public’s shared interest in the enforcement of federal statutes, and its subsequent conclusion that a litigant may not have standing to raise a claim for violation of a federal statute based on a congressionally created private right of action. It is not generally a virtue for a constitutional interpretation to stray so far from actual practice. Now is also an ideal time to reexamine whether Article II limits Congress’s power to create private rights of action because the Court has recently shown a renewed interest in the question, and some of the best insights into how that question should be resolved come from recently decided cases.

Unpacking the basis of standing doctrine also reveals curious and thus-far unexplored similarities with the common law doctrine of desuetude, which allowed courts to abrogate outdated statutes. Understanding the similarities between these two doctrines provides both new justifications and new critiques of some aspects of standing doctrine and, more generally, of executive enforcement discretion.

Finally, viewing preemption cases through the lens of when federal law enforcement may be a shared enterprise offers a new perspective on the meaning of these cases. Most writing about the Court’s recent preemption decisions, such as Arizona v. United States, has addressed what the decisions mean for federalism. Scholars have emphasized that Arizona is the exception from the perspective of federalism—the President’s enforcement decisions do not typically preclude states from enforcing overlapping or related state laws in ways that differ from how the President enforces federal law. Yet little attention has been paid to what this understanding of federalism means for separation of powers—to the extent scholars have analyzed Arizona’s separation-of-powers implications, their analyses have only concerned whether the President has the power to decline to enforce federal statutes. The fact that scholars view decisions like Arizona as aberrational suggests the general rule is that nonexecutive actors may enforce federal law and that the execution of federal law is more of a shared enterprise than the Court’s separation-of-powers cases suggest. The preemption cases show that the President does not, and sometimes should not, have unfettered discretion to decide when the public has a shared interest in the enforcement of federal law.

The Article proceeds in four parts. Part I will introduce the principle animating several of the Court’s separation-of-powers cases—namely, that Article II requires the President alone to execute federal law. It will focus on the Court’s claim that because executing federal law includes overseeing the public’s shared interest in federal law enforcement, the President must be the one to initiate suits designed to vindicate that interest. Part II will then highlight how several preemption cases suggest that nonexecutive actors may likewise vindicate the public interest in seeing federal law enforced. In particular, the Court has championed the states’ ability to vindicate this interest, and several statutory schemes expressly permit states to enforce federal law. These cases underscore the benefits that sound in federalism in having the states enforce federal laws in ways that differ from those of the President. Yet the preemption cases make no mention of any troubling separation-of-powers implications, even though the cases simultaneously celebrate the states’ ability to limit the President’s enforcement discretion.

Part III will consider whether states might be permitted to execute federal law even when private litigants are not. The text of Article II does not suggest Congress can authorize this distinction, since both state and private execution of federal law might limit the President’s discretion. Part III will also reject the notion that principles of federalism would justify a bright-line distinction between states and private litigants. Federalism describes the virtues of limiting the ability of the federal government to decide an issue—here, how federal law should be executed—for the entire polity. The very idea that federalism has value in the context of vindicating the public’s shared interest in the enforcement of federal law is at odds with the separation-of-powers cases, which assert that something important is lost when someone other than the President executes federal law. Moreover, once a constitutional principle such as federalism provides a justification for Congress to authorize nonexecutive actors to enforce federal law, other constitutional principles, such as the rule of law, should similarly suffice as a justification for Congress to authorize other nonexecutive actors to enforce federal law.

Finally, Part IV will argue that the Constitution permits Congress to authorize private rights of action allowing private individuals to enforce federal civil statutes. The Court’s rigid interpretation of Article II in separation-of-powers cases has thin constitutional foundations and would undermine myriad arrangements where nonexecutive actors execute federal law. It is also motivated by questionable assumptions about the legislative process and whether the President is actually accountable for enforcement decisions, and it runs counter to commonly held views about how and when presidents may decline to enforce federal statutes. For these reasons, Article II should not be understood to limit Congress’s ability to authorize private individuals to enforce federal civil statutes; independent constitutional provisions, however, may limit whether nonexecutive actors may enforce criminal laws.

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