Issue 3

Super PACs, Personal Data, and Campaign Finance Loopholes

Personal data is a commodity—frequently bought, sold, and traded on the open market by for-profit and non-profit organizations alike. It is now commonplace for political campaigns to synthesize large amounts of personal information to tailor messaging to particular individuals for persuasion, turnout, and fundraising. As campaigns and other political organizations use data in increasingly sophisticated ways, they have also dramatically increased their data collection and transfer efforts. This Note explores how federal election laws and regulations have failed to keep pace with these developments, creating a loophole through which virtually unlimited money can flow to campaigns.

This Note argues that personal data should be regulated like any other campaign asset. Federal political campaigns are subject to strict contribution limits as well as a comprehensive disclosure regime. Current Federal Election Commission advisory opinions and agency inaction have allowed campaigns to receive valuable personal data at practically no cost, even from organizations like super PACs that are otherwise prohibited from making contributions to campaigns. Perhaps even more troubling is that these contributions are not subject to the disclosure requirements that form the backbone of the federal campaign finance system. The transfer of this class of assets is subject to neither meaningful restrictions nor public scrutiny. This Note details the problem and proposes several simple regulatory changes to close existing campaign finance loopholes.

Corporate Disestablishment

Across the American economy, the wall between church and company is crumbling. Businesses large and small have taken on religious identities and now conduct their corporate affairs according to religious principles. The Supreme Court’s decision in Burwell v. Hobby Lobby, which held that for-profit corporations are eligible to claim religious exemptions from general laws, added significant legal momentum to this emerging cultural phenomenon.

In the wake of Hobby Lobby, scholars concerned about the expansion of corporate religion have searched in vain for coherent limiting principles. Drawing on an underexplored set of cases in which employees claim that companies have impermissibly imposed religion, this Article identifies such principles. It argues—on both doctrinal and normative grounds—that values of conscience, non-domination, and mutual respect work in tandem to constitute the outer boundaries of corporate religion. These values, in turn, mirror norms central to the Establishment Clause of the First Amendment, making a parallel case for “corporate disestablishment.” The idea of corporate disest­ablishment reflects structural similarities between political and private governments and clarifies the proper relationship between religion and business in a diverse modern economy.

The “Murder Scene Exception” – Myth or Reality? Empirically Testing the Influence of Crime Severity in Federal Search-and-Seizure Cases

Prior experimental studies suggest that judges are susceptible to cognitive biases when making legal decisions, such as being motivated by the legally irrelevant nature of a defendant’s crime when determining the admissibility of challenged evidence. However, that research has been constrained to hypothetical cases, limiting the real-world conclusions that can be drawn from it. Addressing this empirical gap, we offer a novel observational analysis that tests the influence of crime severity on suppression outcomes in actual search-and-seizure cases from U.S. Courts of Appeals.

Using legislative criminal penalties to measure crime severity, our analysis shows that as crime severity increases, judges become significantly less likely to exclude challenged evidence on Fourth Amendment grounds—even though crime severity is not a doctrinally relevant consideration. Another legally extrinsic factor, the ideology of the opinion-writing judge, is also found to exert an influence, but only in the most serious criminal cases that involve a life sentence or the death penalty. In these particularly high-stakes decisions, conservative-leaning judges are more likely to uphold the admissibility of challenged evidence, while liberal-leaning judges are more likely to suppress it. Our data also indicate that the intrusiveness of the challenged police search, a doctrinally relevant factor, independently influences admissibility judgments.

The results of our study both confirm and complicate existing understandings of judicial decision-making in the Fourth Amendment context and beyond. Furthermore, by directly building on two lines of prior experimental findings grounded in psychology theory, the “empirical triangulation” approach we operationalize here illustrates an advantageous model for optimizing the validity of empirical scholarship on judicial behavior.

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