Abstract

The doctrine announced in Citizens United rendered most efforts to regulate campaign financing unconstitutional.  We argue, however, that the doctrine allows for a novel approach to the concerns inherent in campaign financing that does not directly infringe on political speech, because it operates later in the process, after the election.  This approach allows us to address a broad range of these issues and to do so with legal tools that are readily available.

We describe two applications of our approach in this Article.  First, we argue that courts should use a modified rational basis review when a law implicates the interests of a major campaign contributor.  The nature of the inquiry remains the same—the law only needs to serve some public purpose—but the standard is modified to be less deferential, because the campaign spending undermines the democratic accountability rationale behind that deference.  Second, we argue that some of the key goals of campaign finance regulation can be realized through institutional design of the policymaking process, which has far fewer constitutional limits than campaign finance regulation.