Public Law & Legal Theory
The plurality and dissenting opinions in McCutcheon v. FEC seem unreal. These opinions, which considered a series of strategies for circumventing federal limits on contributions to candidates, failed to notice that these limits were no longer breathing. The D.C. Circuit’s 2010 decision in SpeechNow.org v. FEC created a far easier way to evade the limits than any of those the Supreme Court discussed. SpeechNow held all limits on contributions to super PACs unconstitutional. This Article contends that SpeechNow was wrongly decided. It also considers what can be said for and against a bumper sticker’s declarations that money is not speech and that corporations are not people. It proposes a framework for evaluating the constitutionality of campaign-finance regulations that differs from the one currently employed by the Supreme Court. And it proposes a legislative scheme of campaign-finance regulation that would effectively limit contributions while respecting the Supreme Court’s campaign-finance decisions.
Albert Alschuler, "Limiting Political Contributions after Mccutcheon, Citizens United, and SpeechNow" (University of Chicago Public Law & Legal Theory Working Paper No. 485, 2014).