Volume 98

The End of Campaign Finance Law as We Knew It

The Article argues that Citizens United v. FEC ended campaign finance law as we long knew it, but for reasons that have little to do with corporate electioneering. Although the public outcry and legal scholarship have focused on the decision’s narrow effect on corporations, the Article demonstrates how the decision’s broader logic transformed campaign finance law beyond corporate electioneering and led within months to the nearly complete de-regulation of independent expenditures in time for the 2010 elections. Last year’s elections provided only a glimpse of what the Article calls the reverse hydraulics of de-regulation, and as the Article argues, this new de-regulated world of campaign finance is not a better one.

Citizens United therefore is a clear turning point for not just campaign finance law, but for all regulation of the relationship between campaign money and the political process. However, the Article surprisingly concludes in the end that the Supreme Court actually may be sympathetic to alternate forms of regulation of political corruption, notwithstanding Citizens United’s broad skepticism about corruption. Namely, the Court may be much more sanguine toward government regulation of campaign money’s influence when it is structured as ex post regulation of the legislative process on the back end, as opposed to the ex ante structure of campaign finance regulation. Citizens United, when considered in light of other recent Court decisions, point this way forward for campaign finance reform without campaign finance regulation.

Remaking Lawrence

It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.

These sentences appeared in the Supreme Court’s decision Lawrence v. Texas, which struck down sodomy laws as violating liberty protections for private sexual conduct. The decision was a watershed moment for civil rights and civil liberties advocates. For gay rights activists, the decision represented a movement toward sexual equality: “when the history of our times is written, Lawrence may well be remembered as the Brown v. Board of gay and lesbian America.” For civil libertarians, Lawrence marked another victory for privacy rights, namely that consenting adults have the right to engage in relations free from government intrusion. One article aptly described the decision as the Court drawing “a thick constitutional curtain around the nation’s bedrooms.”

Fast forward ten years. Arguments for the freedom of sexual expression, intimate association, and individual liberty that successfully prevailed in one set of circumstances—the decriminalization of sodomy—have been put to use in legal challenges involving gay and lesbian adoption, military service, and same-sex marriage. While Lawrence is invoked quite frequently and almost reflexively, lower courts rarely cite it as controlling precedent, and some have scoffed at attorneys for drawing on the decision to make their case. In the instances in which Lawrence takes center stage in a decision, its meaning either has a different application than when it was decided in 2003, or it is used in large part to strike down morality-based laws.5 These developments raise an important question only Tina Turner could style: What’s Lawrence Got to Do With It?

Wal-Mart, AT&T Mobility, and the Decline of the Deterrent Class Action

The justification for class actions rests on two main grounds: compensating victims whose claims are too small to be brought individually and deterring wrongdoing by aggregating claims to facilitate private enforcement. These two rationales overlap and compete with one another, as does their application to class actions certified under different subdivisions of Federal Rule of Civil Procedure 23. Broadly speaking, class actions certified under subdivision (b)(3) focus on compensation to individual class members, with deterrence resulting only from the defendant’s exposure to liability for paying such compensation, while class actions certified under subdivision (b)(2) focus on injunctions that prevent or deter future wrongdoing, without regard to the relief awarded to individual class members. In the recent decisions in Wal-Mart Stores, Inc. v. Dukes and AT&T Mobility LLC v. Concepcion, the Supreme Court cast further doubt on the deterrent function of the class action. More precisely, it sacrificed deterrence when compensation could not be accurately given. Wal-Mart restricted the remedies available in (b)(2) class actions to exclude individual monetary relief, and it also restricted the conditions under which any class action could be certified. AT&T Mobility restricted the conditions under which plaintiffs could get to court to bring a class action in the face of contracts requiring individual arbitration. These decisions are all the more significant for being widely misunderstood.

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