Forget Congress: Reforming Campaign Finance Through Mutually Assured Destruction

55 Pages Posted: 30 Jun 2015 Last revised: 27 Jan 2016

See all articles by Nicholas Warshaw

Nicholas Warshaw

University of California, Los Angeles (UCLA) - School of Law

Date Written: June 22, 2015

Abstract

Congress will not enact meaningful campaign finance reform. Under the nation’s current legislative, regulatory, and judicial regimes, remedies to the problem of money in politics appear unattainable. This Comment provides an entirely novel approach toward reducing the corrosive influence of outside money on the U.S political system. Aided by the power of the profit motive, this Comment proposes the creation of Super PAC Insurance, a nonpartisan private entity with one central goal: deterring outside Super PACs and 501(c)(4) organizations from spending money in elections. The Comment details the mechanics of Super PAC Insurance, addresses its legality, and proposes several variations on its basic model.

Super PAC Insurance disincentivizes outside spending by applying the principle of “mutually assured destruction.” As demonstrated in the 2012 U.S. Senate race in Massachusetts — when then Professor Elizabeth Warren and Senator Scott Brown took The People’s Pledge — adding costs can effectively deter Super PACs from spending in elections. Once Super PACs know their spending will trigger a barrage of opposition spending by Super PAC Insurance, they should be less likely to spend against an insured candidate. Thus, Super PAC Insurance will reduce the influence of money in politics writ large.

In the wake of Citizens United and its progeny, American political spending has skyrocketed out of control. Rather than produce despondency among reformers, this new reality must catalyze innovation. This Comment’s private ordering solution moves beyond government paralysis and offers a workable path forward toward reducing the influence of outside money in politics.

Keywords: Campaign Finance, Campaign Finance Reform, Citizens United, Insurance Law, Federal Elections Commission, Super PACs, Political Action Committees, 501(c)(4) corporations

Suggested Citation

Warshaw, Nicholas, Forget Congress: Reforming Campaign Finance Through Mutually Assured Destruction (June 22, 2015). 63 UCLA Law Review 208 (2016), UCLA School of Law, Law-Econ Research Paper No. 15-09, Available at SSRN: https://ssrn.com/abstract=2621788

Nicholas Warshaw (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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