Nicholas Stephanopoulos (Harvard Law School) has posted Quasi Campaign Finance (Duke Law Journal, Forthcoming) on SSRN. Here is the abstract:
Say you’re wealthy and want to influence American politics. How would you do it? Conventional campaign finance—giving or spending money to sway elections—is one option. Lobbying is another. This Article identifies and explores a third possibility: quasi campaign finance, or spending money on non-electoral communications with voters that nevertheless rely on an electoral mechanism to be effective. Little is currently known about quasi campaign finance because no law requires its disclosure. But its use by America’s richest and politically savviest individuals—the Koch brothers, Michael Bloomberg, and the like—appears to be rising. It also seems to skew policy outcomes in the spenders’ preferred direction.
After introducing quasi campaign finance, the Article considers its legal status. Is it like ordinary campaign finance, in which case it could be regulated fairly extensively? Or is it like garden-variety political speech, rendering it presumptively unregulable? One argument for pairing quasi and regular campaign finance is that they share several features—who bankrolls them, the tactics they pay for, the reasons they work—and so may serve as substitutes. Another rationale for conflation is that they may both cause the same democratic injuries: corruption, the distortion of public opinion, and the misalignment of public policy. Pitted against these points is the slippery-slope objection: If quasi campaign finance may constitutionally be curbed, what political speech may not be?
Lastly, the Article suggests how quasi campaign finance should (assuming it actually may) be regulated. Limits on contributions and expenditures are unwise and probably unadministrable. Disclosure, though, is a necessity. The public should know who is trying to persuade it (and how). Even more promising is the public subsidization of quasi campaign finance. If every voter received a voucher for this purpose, then public funds might crowd out private capital, thus alleviating its harmful effects.
And from the paper:
I first define quasi campaign finance as funding for communications with voters that are non-electoral yet rely on an electoral mechanism to be effective.
And:
This brings me to the first of the two distinguishing characteristics of quasi campaign finance: the non-electoral nature of the communications with voters. They do not openly urge the election or defeat of any candidate. Indeed, they often do not even mention any candidate’s name. The messages may also be sent at any time, whether an election is imminent or still years away. If anything, their schedule is more closely tied to the ongoing policy debate than to the electoral calendar. Nevertheless, the communications are necessarily political. Their subject may be an overarching ideology: libertarianism, religious fundamentalism, environmentalism, socialism, and so on. Or they may tackle a particular issue: taxes, abortion, climate change, welfare, and the like. In either case, the messages provide the recipients with information, argue for certain positions, and, sometimes, request that the recipients take actions. These steps could be supplying contact details, writing to representatives, giving money, or volunteering for future activities.
The other essential attribute of quasi campaign finance is its reliance on an electoral mechanism to be effective. This mechanism is quite blunt for certain communications. Though their content is non-electoral, their primary purpose is to elect or defeat specific candidates. The messages only take a non-electoral form because their funders have decided, for legal or strategic reasons, that this approach is preferable to an overtly electoral effort. The mechanism is subtler, however, for other communications. Their aim truly is policy change (or preservation), not returning candidates to (or ousting them from) office. The broadcasters of these messages may even be agnostic as to who is elected as long as their policy priorities are achieved. Yet these activities, too, depend on an electoral connection for their efficacy.
Highly recommended.