Washington Law Review

Article

The Unwilling Donor

December 21, 2015 | 90 Wash. L. Rev. 1783

Abstract: For nearly forty years, the Supreme Court has evaluated campaign finance restrictions by weighing the First Amendment burden they place on a donor eager to engage the political process against the government’s interest in avoiding corruption of that process. Most recently, in McCutcheon v. FEC, the Court struck down aggregate contribution limits, allowing donors to give—and candidates and parties to solicit—millions of dollars directly to candidates, parties, and political action committees. Yet what should have been a significant victory for big donors was greeted with dismay by many of the same.

There is growing evidence that the story we have been telling ourselves about political money is, at best, incomplete, and that many donors give only reluctantly, out of fear of political repercussions. This Article examines the problem of the unwilling donor and argues for the first time that it has significant implications for campaign finance doctrine. Flipping the narrative allows a fresh view of key concepts, including the need for systemic campaign finance regulations, the Court’s current emphasis on quid pro quo corruption, and the First Amendment interests of campaign donors. Previous scholarship has overlooked the existence and constitutional import of this alternative, “extortionate,” framework.

The Unwilling Donor steps into this critical gap. The Article first provides an overview of the Supreme Court’s past campaign finance jurisprudence, including McCutcheon, almost all of which is premised on the notion of a willing donor. It then surveys empirical studies and historical data to demonstrate that the unwilling donor, while perhaps not a sympathetic character, is a very real one. The final Part of the Article contemplates the legal significance of the unwilling donor problem, concluding that it is relevant to the continued vitality of campaign finance efforts, to the Court’s analysis of campaign finance reform restrictions, and to future litigation strategies in this area.

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