1.1. Recurrent themes

1.2. The puzzle elaborated

Figure 1 graphs the number of campaign finance reform bills introduced over time by year and shows highs and lows for both the pre- and post-2002 periods. The graph begins in 1973 because prior to that, we are not able to find and systematically track every potentially relevant bill (see Section 2, Methods, below). Counts of bills introduced post-2002 go no lower than they did from 1973 to 2002. Although the highest count after 2002 peaks lower than the highest count of the pre-2002 period, the highest count after the 2002 enactment of the BCRA is as high or higher than the highs in every earlier Congress save the 93rd (1973–1974) and 105th (1997–1998). This is so despite that Citizens United limited constitutionally permissible reform strategies.

Figure 1. Introduced Bills by Congress.

Data in Figure 1, along with our analytic history, support and suggest further elaboration of the starting puzzle—that despite the many regulatory bills introduced in Congress in the twenty-first century and public opinion across partisan lines supporting further regulation of campaign finance, no reform bill reducing the influence of “big money” in federal campaign financing has been enacted since 2002. The reasons for this cannot be reduced to the Supreme Court's foreclosing all options for reform in Citizens United, because the Court did not do so. Nor can the reasons be reduced to reformers’ abandonment of corruption rhetoric. As shown, President Obama's promotion of the 2010 Disclose Act emphasized a through-line of corruption necessitating additional reform. In promoting the failed 2021 Disclose Act, Senator Sheldon Whitehouse (D-RI) testified to the Senate's Rules Committee:

Nor does the post-2002 period lack political entrepreneurs promoting campaign finance reform. Not only did Republican Senator McCain aggressively champion the failed 527 Reform Act of 2005, he also was one of the original sponsors of the 2012 Disclose Act.Footnote ⁸³ For the Democrats, Senator Whitehouse picked up the cause in recent years.Footnote ⁸⁴

Neither can the absence of scandal explain the absence of successful federal campaign finance reform in recent years. Even if the post-2002 era were devoid of scandal relating to electoral politics—a laughable propositionFootnote ⁸⁵—by providing examples such as the failed 1991–1992 reform effort that responded to scandal, on the one hand, and the successful 1976 FECA that responded to Buckley, on the other, we showed that scandal has been neither sufficient for, nor necessary to, enacting campaign finance reform. As for partisan politics, politicians’ self and party interests in besting opponents and opponents’ party in electoral fundraising continue to drive campaign finance politics, as they always have done.Footnote ⁸⁶ Thus, the partisan nature of campaign finance politics alone cannot explain why there has been no successful reform to limit the influence of “big money” in recent years.

Institutional rules governing the capacity of the minority party to block legislation agreed to by a majority in both chambers of Congress, whether by Senate filibuster or by Presidential vetoFootnote ⁸⁷ have not changed. Senate Rule 22 governing cloture always has required sixty votes to break a filibuster launched by a minority party or faction in the Senate. Similarly, the rule requiring a two-thirds vote in both the House and Senate to override a President's veto has remained constant through the twentieth and twenty-first centuries.Footnote ⁸⁸ Even if levels of cross-partisan support for campaign finance reform in Congress dropped in recent years, the reasons for this still beg explanation, given that cross-partisan public support for campaign finance reform has remained high.

Findings of cross-partisan public support for campaign finance reform demonstrated by the 2023 Pew poll noted at the outset of this article are not anomalous. Although a 2009 Gallup poll found that 62% of Democrats, 64% of Republicans, and 48% of Independents thought that campaign donations constituted First Amendment-protected free speech, 61% of Americans nonetheless thought government should be able to limit the amount that individuals could give to political candidates, and 76% thought government should be able to limit the amount of money unions or corporations could give.Footnote ⁸⁹ A 2013 Gallop poll found that almost 80% of Americans, including 82% of Democrats and 78% of Independents and Republicans respectively, stated they would support a bill limiting spending by Congressional candidates.Footnote ⁹⁰ Findings from the 2013 Gallup poll also show that half of American adults, including 60% of Democrats, 48% of Independents, and 41% of Republicans supported government financing of federal elections accompanied by banning private money contributions from all individuals and groups.Footnote ⁹¹

A 2018 study showed that 60% of Americans thought that “reducing the influence of big campaign donors” was very important, and another 28% thought it was somewhat important. For Democrats, these numbers were 72% and 20% respectively, and for Republicans they were 49% and 35%.Footnote ⁹² Beyond this, 75% of Americans, including 85% of Democrats and 66% of Republicans, supported a constitutional amendment to undo Citizens United.Footnote ⁹³ Less than half of Americans overall thought an anti-Citizens United amendment constituted an assault on free speech, and most Americans supported enhanced disclosure, including requiring corporations and unions to report directly to their shareholders, their members, and the public, as well as to the FEC. More than four out of five Americans agreed with the statement that “the rich should not have more influence just because they have more money.”Footnote ⁹⁴ In February 2025, the Pew Research Center (2025) reported: “Roughly seven-in-ten Americans say [that] ‘the role of money in politics’ is a very big problem in the country today – the highest share of any of the 24 items asked about.” Seventy eight percent of Democrats and 66% of Republicans selected this response.Footnote ⁹⁵

In short, public support for campaign finance reform both overall and across the partisan divide remains consistently strong even post-Citizens United, suggesting that the answer for why no reform efforts have been successful in recent years cannot rest solely on public opinion. It is true that, even during the 2000 Presidential primaries, when John McCain put campaign finance front and center in American politics, not more than 1-2% of Americans spontaneously mentioned this issue when asked “without prompting to report the one or two most important issues facing the country.”Footnote ⁹⁶ However, this low level of issue salience with the public did not prevent successful enactment of the BCRA.

Below, we identify three ideal type reform trajectories that historically provided some possibility of successful campaign finance reform to curb the influence of “big money” in federal elections. We argue that a combination of changes in the political, legal, and media environments over time made successful reform unlikely post-2002 and almost impossible post-2010. Before proceeding, we discuss our data gathering and analytic methods.

3.1. Scandal as agenda-setter

As Figure 2 shows, scandal as agenda-setter fits 20 (50%) of the forty cases. Though scandal is neither sufficient nor necessary for successful reform (see above), scandal as agenda- setter is one major route to Congress taking campaign finance issues seriously. As we argued, scandal is not just problematic behavior but must be constructed as corrupt wrongdoing. We define the scandal as agenda-setter reform trajectory as involving major wrongdoing by political candidates or elected officials that, proximate in time to but preceding introduction of the given reform in Congress, is disclosed, publicized, and framed by the media and/or reformist watchdog organizations as a corruption scandal threatening fundamental principles of democracy. Exemplar cases include the enacted Tillman Act, preceded by the Great Wall Street Scandal, the enacted 1974 FECA, preceded by Watergate, and the failed 1991-92 Congressional Campaign Spending Limit and Reform Act, preceded by the Keating Five scandal.

Because the social construction of scandal draws attention from the public and members of Congress and/or the President, the nature and extent of public and politicians’ attention, and whether and how attention reverberates across party lines become important for predicting the success or failure of proposed reforms in the scandal as agenda-setter type. For example, at the time Senator McCain introduced the failed 1995 reform bill, the Keating Five scandal still operated in an agenda-setting capacity. However, public attention to the scandal had waned substantially and this probably reduced the likelihood of successful reform.

As well, because the scandal as agenda-setter trajectory requires entrepreneurs for what Deters and Faulkner call “discursive agenda-setting”Footnote ¹¹⁰—the term flags the importance of ideas in the agenda-setting process—the scandal as agenda-setter type foregrounds cultural framing, including frames used to counter corruption frames, and the political capital accruing to political and policy entrepreneurs. As to the first, the ascendance of free speech framing helped combat corruption framing's persuasiveness. As to the second, although Senator McCain had exercised entrepreneurship in favor of campaign finance reform since the mid-1990s, his political capital among colleagues increased once McCain made a credible run for the 2000 Republican Presidential nomination with campaign finance reform as his signature issue (see Section 1). President George W. Bush's signing of the BCRA helped keep McCain and Congresspersons who supported him in Bush's corner for the 2004 Presidential election, in which McCain campaigned for Bush.Footnote ¹¹¹

Whether both Republicans and Democrats or members of one party alone are tarred by scandal affects whether members of both parties, or those of one party only, are incentivized to vote for reform to redeem themselves with voters angered by corruption. Labeling Senator McCain as well as four Democratic Senators as corrupt wrongdoers, Keating Five gave the vetoed 1991-92 reform overwhelming support from Democrats but also non-negligeable support from Republicans in Congress.Footnote ¹¹² Also, it was the Keating Five scandal that propelled McCain into political entrepreneurship for campaign finance reform, to compensate for self-recognized wrongdoing that he did, however, claim was not law violation.Footnote ¹¹³ Post-BCRA, McCain continued his reform work by introducing the failed 527 Reform Act of 2005 in the wake of a corruption scandal involving Republican lobbyist and member of George W. Bush's transition team, Jack Abramoff, who diverted fees earned from his lobbying firm to make campaign contributions to legislators whose votes he needed for legislation benefitting his clients.Footnote ¹¹⁴ Bill co-sponsor Trent Lott (R-MS) risked being caught up in the Abramoff scandal.

Meanwhile, although McCain and other reformers designed the 2002 BCRA to close loopholes in prior law, the Enron scandal preceding the BCRA's enactment may have encouraged President Bush to sign the bill into law. Bipartisan BCRA co-sponsors McCain and Russell Feingold (D-WI) introduced the bill and kept things moving on it prior to Enron's bankruptcy in December 2001, when it was discovered that the Houston-based energy company and seventh largest company in the country had engaged in major fraud.Footnote ¹¹⁵ Enron's leadership used off-the-books accounting practices and recorded fake holdings to mislead regulators about its financial health. Enron Chairperson Kenneth Lay, who had close ties to President George W. Bush, contributed substantial soft money to the GOP. Enron's wrongdoing generated a firestorm of publicity.Footnote ¹¹⁶

As the story of Enron relative to the BCRA shows, careful process tracing is needed to establish the timing of publicized and corruption-framed wrongdoing relative to a bill's introduction or enactment. Though the Enron scandal did not play an agenda-setting role prior to the introduction of the BCRA, it did facilitate enactment. An earlier scandal did precede and help set the agenda for the 2002 BCRA and the late 1990s attempts at reform that Figure 2 shows preceded the BCRA.Footnote ¹¹⁷ Readers interested in further discussion of why Figure 2 classifies the failed 1997, 1998, and 1999 reform efforts, as well as the 1971 FECA, the failed 1970 FECA, the failed 1989, 1990, 1993 and 1995 reform efforts, and the failed 2021 Disclose and For the People Acts, but not the 1910 and 1911 FCPAs, the failed reform efforts of 1985-86, the multiple failed reform efforts in 1987, the failed reform in 1996, and the failed 2019 For the People Act, within the scandal as agenda-setter ideal type are referred to our Appendix. This appendix shows when these bills were introduced in Congress relative to diverse relevant scandals occurring proximately in time.

What is especially important here is that for all efforts that do fit the scandal as agenda-setter ideal type, scandal shapes politicians’ electoral interests in campaign finance reform. How scandal does so depends on the incidence and content of media publicity, the framing of the scandal, the extent of public outrage, and its reverberation across partisan lines. These factors assessed relative to the partisan balance of power, Senate filibuster and Presidential veto rules, allow predictions about the likelihood of successful vs. failed campaign finance reform within this ideal type.

Unless scandal reverberates through mass media framing to provoke public outrage across party lines, scandal is unlikely to result in enacted reform because typically no one party will have the needed supermajority to enact reform against the other party's resistance. We return to this theme in Section 4. When a socially constructed scandal does reverberate across party lines targeting wrongdoers in both parties and when public opinion shows that public outrage and desire for reform cross-cut partisanship, then all else equal, proposed reform should be more likely to become law. This is because unless one party holds the overwhelming majority in both the House and Senate and is not factionalized, and that party either holds the Presidency or has the two-thirds super-majority needed to overturn a Presidential veto, that party cannot on its own enact the reform.

Beyond this, even if a pro-reform party cannot produce a supermajority vote to override a veto from a President of the other party, if the other party is factionalized for and against reform, then attaining the needed supermajority in cross-partisan fashion becomes more likely, especially in the presence of scandal and public outrage reverberating across party lines. Conversely, when both parties have pro- and anti-reform factions, achieving the necessary supermajority to enact reform is more difficult.

Overall, by highlighting how scandal works as an agenda-setting mechanism for campaign finance reform as well as key conditions under which scandal is more vs. less likely to lead to enacted reform, defining this ideal-type reform trajectory helps solve our starting puzzle. As we show below, post-2002 and especially post-2010, combined changes in political, media, and legal context plummeted chances for successful federal campaign finance reform reducing the influence of “big money” through the scandal as agenda-setter trajectory.

3.2. Supreme court as agenda-setter

As Figure 2 shows, the Supreme Court as agenda-setter ideal type fits 29 (72.5%) of forty reform efforts depicted in Table 1.This includes successful and failed efforts as well as those for which scandal as well as the Court played an agenda-setting role and those for which scandal was absent. Court agenda-setting is thus neither necessary nor sufficient for proposing or enacting campaign finance reform. We define the Court as agenda-setter ideal type trajectory to include all cases in which Congress proposes reforms that respond at least in part to the Supreme Court's prior announcement of constitutional restrictions on campaign finance legislation or to the Supreme Court's invitations to legislate in particular ways, issued in rulings responding to litigation over earlier enacted reforms. The 1925 FCPA, responding directly to the Court's Newberry ruling, and the 1976 FECA, responding to the Court's Buckley ruling (see Section 1) are exemplars,Footnote ¹¹⁸ as is Senate Joint Resolution 18 of 1997, proposing a constitutional amendment to allow both federal and state governments to regulate campaign spending as well as contributions.Footnote ¹¹⁹

The Court as agenda-setter ideal type relates to puzzle solving in that in response to strategic litigation by the conservative legal movement (see Section 1), the Court has dramatically limited the constitutionally acceptable reasons for regulating private money in electoral politics and also the constitutionally acceptable strategies for doing so. The persuasive reach of free speech framing on behalf of opponents of campaign finance regulation rose exponentially in the twenty-first century, while the countervailing effectiveness of the corruption and equality framings mobilized by campaign finance reformers declined dramatically.Footnote ¹²⁰ As we show in Section 4, the timing of the Supreme Court's jurisprudential shifts tracks well with the declining incidence of successful campaign finance reform. However, because the Court's evolving restrictiveness alone does not completely preclude successful reform (see Section 1), the answer to our starting puzzle requires combining campaign finance reform-specific change in the legal realm with more general changes in law, politics, and the media.

With respect to how Supreme Court decision-making has limited campaign finance reformers’ maneuvering room in recent years, albeit not on its own precluding some success, we note the following. Proposed and enacted reforms proximate in time to Supreme Court decisions constraining constitutionally acceptable ways to regulate private money in U.S. electoral politics—the 1925 FCPA amendments, the 1976 FECA amendments, and the 2010 Disclose Act—fit the Court as agenda-setter type in exemplifying short term, direct feedback from Court decisions to legislative and executive branch politics and policymaking. However, as long as Buckley and Citizens United endure as “good law” while not being substantially limited by later precedent, the content of all reform bills later in time remains path dependent on these rulings.Footnote ¹²¹ In short, because Buckley constrained all post-Buckley reform efforts (except attempts at constitutional amendment which responded to Buckley by trying to nullify it) to focus on strategies other than mandatory candidate spending limits to curb the influence of “big money” in federal electoral politics, all these efforts fit the Court as agenda-setter type.

All post-Citizens United reform efforts to curb the influence of moneyed interests in federal elections also have had their agendas set at least partially by Citizens United. After this ruling, no longer could the elected branches regulate either candidate spending or spending by individuals, organizations, or groups that are formally independent from the candidate and their election committee (see Section 1). They could, however, continue relying on disclosure. In light of Citizens United's constraints on regulatory mechanisms, as well as its approval of disclosure, it is no surprise that the post-2010 Disclose and For the People Acts sought to enhance disclosure.

In the U.S. system, court agenda-setting also involves courts in policymaking; judicial review gives courts a gatekeeping function. Kagan characterized U.S. style adversarial legalism as a mode of dispute resolution and policymaking in which public interest groups place core policy and regulatory issues before the federal courts and judges make policy under the optics of legal dispute resolution.Footnote ¹²² A 1971 Common Cause lawsuit against officials who violated disclosure regulations in the 1968 election is a case in point.Footnote ¹²³ Steigerwalt and Howard similarly emphasize that the Supreme Court's capacity to declare legislation unconstitutional grants it ample influence over public policy, especially by acting as a veto player.Footnote ¹²⁴

When the Supreme Court's statutory interpretation conflicts with the preferences of Congress or a specific civil society group involved in litigating federal policy, Congress can enact new legislation reaffirming its position. But when the Court rules that enacted federal legislation is unconstitutional in whole or in part, the Court has the final word, and both Congress and outside interest groups must adapt.

In short, within the Supreme Court as agenda-setter type, both legal framing and the rules governing judicial review come to the analytic fore. The rules provide opportunities for reform opponents to encourage or initiate litigation challenging the constitutionality of provisions within a previously enacted bill. Yet, at the same time, opponents mount their challenges by crafting legal frames that have constitutional import. The “money is speech” strategic litigation campaign mounted by the conservative legal movement and modeled on the earlier progressive legal campaign for minority civil rights mounted by the NAACP-LDF was a long-term strategy, and built slowly toward today's level of Supreme Court restrictiveness.Footnote ¹²⁵ In addition to the free speech arguments by the litigants challenging campaign finance reform, organizations such as the Institute for Free Speech are now integral to the conservative legal movement; they routinely file amicus briefs supporting free speech challenges to campaign finance regulation.Footnote ¹²⁶

Once the Supreme Court decides that provisions in existing campaign finance law are unconstitutional, any proposed legislation must adopt the newly required legal restrictions and/or seek alternative ways to reach reformers’ goals that will not infringe on the new Court precedent. To that extent, the Court sets the agenda for all future campaign finance reform efforts. In turn, the Supreme Court as agenda-setter type highlights that “[j]udicial and political power are inextricably linked in America.”Footnote ¹²⁷

Reforms enacted in response to Court-imposed restrictions on permissible reform strategies are successful in being enacted but also must acquiesce to the Court's decision to roll back earlier reforms. Thus, Supreme Court agenda-setting gives anti-reform minorities a potential veto on the substance of enacted reform beyond the Senate filibuster and Presidential veto.Footnote ¹²⁸ And although Court restrictiveness may prompt reformers to double down promoting reform strategies that remain constitutionally viable, as they did with the multiple Disclose Acts proposed in the wake of Citizens United, even such rolled back post-2010 reform efforts failed. This again highlights the need to consider how campaign finance reform-specific change combined with broader changes in law, politics, and media, can explain the absence of enacted federal campaign finance reform curbing the influence of moneyed interests post-BCRA.

3.3. Combining multiple legislative trajectories

The third ideal-type campaign finance reform trajectory, which we label “combining multiple legislative trajectories,” encompasses just seven (17.5%) of the forty reform efforts in Figure 2. However, like the first two types, it provides clues for explaining why no proposed campaign finance reforms have been enacted since the 2002 BCRA. We define this type as capitalizing on political opportunity either for cross-party coalition building and/or for building symbolic capital with like-minded voters by combining multiple legislative initiatives across different issue areas. Footnote ¹²⁹ Combining unrelated issues into one omnibus bill can occur when one bill covers multiple issues from the outset, and also through attaching campaign finance riders or amendments to bills in other issue areas because institutional rules allow this. As Figure 2 shows, the 1925 FCPA, 1943 Smith Connally Act, 1947 Taft-Hartley Act, 1971 Revenue Act, 1985-86 campaign finance amendments to the nuclear waste bill, and the For the People Acts of 2019 and 2021 all exemplify the combining of multiple legislative trajectories ideal type. However, whereas the first four of these efforts succeeded, the last three failed.

Recall that the 1925 FCPA, while responding to Newberry, was enacted as a rider to an unrelated bill increasing postal workers’ salaries. It is not clear why progressive Republican Senator William Borah (R-ID) introduced the campaign finance rider or why the House replaced it with a substitute rider proposed by Representative John Levi Cable (R-OH), prior to passing the postal salary increase.Footnote ¹³⁰ However, attaching the campaign finance component to a salary bill that both the majority of Congress and the President were eager to pass may have facilitated its enactment. Only eight Senate members voted against the bill.Footnote ¹³¹

Democrats controlled both chambers of Congress when the 1971 Revenue Act was proposed, debated, and enacted. In early 1971, President Nixon was criticized heavily for his failure to counteract recession and increasing joblessness; Nixon prioritized stimulating the economy by lowering taxes for businesses and individuals.Footnote ¹³² In the 1960s and beginning of the 1970s, both parties perceived a political interest in supporting tax cuts.Footnote ¹³³ After the House approved a bill reinstating a 7% investment tax credit, increasing the standard deduction on income by 15%, and increasing tax exemptions for individuals, the Senate Finance Committee reported out a bill reducing taxes to an even greater extent than had the House.Footnote ¹³⁴

Sensing opportunity, in November 1971, Senator John Pastore (D-RI) attached to what was a bipartisan tax bill, an amendment to use federal funds to finance presidential campaigns.Footnote ¹³⁵ Finding their party millions in debt, Democrats sought to free Presidential campaigns from reliance on large private donations. With their hefty campaign treasury, Republicans opposed public financing as a boon to Democrats.Footnote ¹³⁶

To win more Republican votes, Democrats accepted a further amendment from moderate Republicans Charles Mathias Jr. (R-MD) and Clifford Case (R-NJ) allowing taxpayers to designate a party for the voluntary one-dollar donations they could “check off” on their tax forms.Footnote ¹³⁷ To forestall President Nixon's threatened veto, the Senate-House conference committee designated the effective date for the changes to be after the 1972 Presidential election.Footnote ¹³⁸ The Committee ensured that Nixon's tax reduction measures, including business tax credits of 7%, remained.Footnote ¹³⁹ A supermajority of yes votes in both the House and Senate sufficient to withstand a Presidential veto ensured that the 1971 Revenue Act became law. In this case, then, capacity to combine multiple legislative trajectories facilitated enactment of public finance provisions favoring Democrats, while postponing implementation until after Nixon was re-elected, along with enacting the President's tax cuts, helped forestall Nixon's veto while also giving reformers enough Republican votes in Congress to make the bill veto proof.

Both the 1943 Smith Connally Act and the 1947 Taft Hartley Act attained success by folding campaign finance provisions prohibiting unions from contributing to political campaigns from their own treasuries, into broader legislation amending federal labor law in ways favorable to business. This appealed to the supermajority of anti-union legislators that combined Southern Democrats with Republicans (see Section 1).

Where all the multiple-trajectory reform efforts in Figure 2 that became law were in the twentieth century, we must also consider failed reforms of this type. Two of these failures, the 2019 and 2021 For the People Acts shown in Figure 2,Footnote ¹⁴⁰ occurred post-2010. These incorporated provisions of prior failed Disclose Acts but also combined prohibitions and limits on campaign financing with voting rights provisions that sought to enhance voting access in ways that would make it harder for the Republican Party to disfranchise Black voters who typically favor Democrats.Footnote ¹⁴¹ Democrats were thus highly incentivized to support the bills and Republicans highly incentivized to oppose them independently of their campaign finance provisions.Footnote ¹⁴² While seeking ways to limit the influence of “big money” consistent with Citizens United, the 2019 bill also excoriated that ruling, expressing staunch support for a constitutional amendment repealing it.Footnote ¹⁴³

Every House Democrat co-sponsored that 2019 bill and it passed the House along strict partisan lines, with 234 Democrats voting for and 193 Republicans voting against. But Republicans controlled the Senate and Senate majority leader Mitch McConnell (R-KY) pledged to deny the bill consideration.Footnote ¹⁴⁴ By 2021, Democrat Joseph Biden was President and Vice President Kamala Harris could exercise a tie-breaking Senate vote, but the opportunity for Republicans to filibuster meant they had enough votes to prevent cloture. This they did multiple times in 2021 and at the start of 2022.Footnote ¹⁴⁵

With respect to the one failure in the multiple trajectory type that occurred prior to 2010, in 1985, Senators David Boren (D-OK) and Barry Goldwater (R-AZ) co-sponsored a campaign finance amendment to an unrelated bill dealing with low-level nuclear waste. The amendment would have lowered the contribution limit to PACs, but Senate majority leader Robert Dole (R-KS) prevented a vote on it.Footnote ¹⁴⁶ In 1986, the amendment was proposed again. It passed the Senate 69-30, with 26 Republicans joining 43 Democrats voting yes. Despite cross-partisan support for the amendment, Senate Republicans did not allow the waste bill to come to a vote.Footnote ¹⁴⁷

In short, comparative process tracing within the multiple trajectories ideal type shows that all three enacted reform efforts and one failed reform effort fell within the twentieth century, while all twenty-first century reform efforts of this type failed. Multiple trajectories reforms that passed were enacted as riders to non-controversial legislation, or by combining provisions favored by both political parties, or by relying on factional interests in one party to generate a cross-partisan, veto-proof supermajority. Conversely, the failed twenty-first century multiple trajectory reforms were not designed to garner cross-partisan support. They were instead symbolic appeals to cement support from the Democratic party base. In the politically polarized environment in which Democrats introduced the 2019 and 2021 bills, they knew these had no chance of success.

The verdict on whether the 1985–1986 campaign finance amendment represents pure symbolic politics, or whether the cross-partisan nature of votes for it suggests it had some chance of enactment is more equivocal. Incumbents from both parties benefited from the vast majority of PAC funding relative to challengers and so might reasonably have hoped this funding would continue. Thus, incumbent Democrats and many Republican incumbents in the Senate who voted yes on the campaign finance amendment could gain symbolic capital from voting in accord with public opinion on the amendment itself, knowing full well that the waste bill to which it was attached would not reach a vote on the Senate floor.

Yet even if the 1985–1986 reform efforts were purely symbolic rather than attempts to exploit real opportunities for enactment by linking campaign finance to an unrelated issue that could facilitate passage, the overall pattern of reform enactment vs. failure in the multiple legislative trajectories ideal type relative to time period is clear. It suggested we focus on identifying changes in politics, media, and the law that would, over time, reduce multiple trajectory campaign finance reform efforts to symbolic politics, rather than constituting an opportunity to enact legislation curbing “big money's” influence through coalition building

Making puzzle solving even more intriguing, the changes we identify must be consistent not only with limiting campaign finance efforts to rein in “big money” to symbolic politics, but also with facilitating the cross-partisan coalition building that resulted in enactment of the Consolidated and Further Continuing Appropriation Act of 2015. This legislation, colloquially referred to as Cromnibus, included a last-minute rider dramatically increasing the amount that big donors could contribute to political parties for party building activities including nominating conventions, get-out-the-vote campaigns, election recounts, renovating headquarters, and various legal expenses.Footnote ¹⁴⁸

The final version of Cromnibus, including its campaign finance rider, emerged after the 2014 mid-term elections had ensured that Republicans would soon replace Democrats as the Senate's majority party, and after the Supreme Court's 2014 decision in McCutcheon v. FEC; McCutcheon invalidated limits that the 1971 FECA had placed on the total amount wealthy donors could give to a PAC, political candidate, or party committee.Footnote ¹⁴⁹ Senate Minority leader and soon-to-be Majority leader Mitch McConnell (R-KY) denied responsibility for the rider once it became public and prominent Democrats including House Minority Leader Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV) strongly criticized it. However, commentators presumed that the rider was McConnell's handiwork, and this assumption was reasonable because McConnell had long spearheaded deregulatory efforts in campaign finance and had recently told CQ Roll Call that he would continue to do so. Also, although McConnell had survived the challenge, he had been primaried by a Tea Party backed candidate, and he sought with the rider to buttress the Republican Party and its leadership against the party's Tea Party elements. House Majority Leader John Boenher (R-OH) promoted the rider in the House.

The timing of final negotiations over Cromnibus favored the rider because, although President Obama championed anti-corruption reforms in campaign finance (see Section 1), he worried that if he did not get an appropriations bill from the 2014 Congress, he would get a bill even less favorable to his spending priorities once the Republicans controlled both Congressional chambers. Despite their rhetoric disapproving of “big money” in electoral politics, having more funds for party building also served Democratic party interests in reducing its debt. The Raleigh News & Observer reported that while both the Republican and Democratic National Committees and their congressional committee counterparts would benefit from the rider, “an infusion of cash might be especially handy for the Democratic Senatorial Campaign Committee, which ended the November midterm elections $20 million in debt.”Footnote ¹⁵⁰

Indeed, just as the Republican leadership ignored the howls of outcry from Tea Party Republicans, Obama ignored pleas to veto Cromnibus from the League of Women Voters, Public Citizen, and several other advocacy groups. Instead, he lobbied Congressional Democrats to vote yes on Cromnibus even though he and the Democratic Party typically championed stricter campaign finance regulation. Senate Majority leader Reid (D-NV), who initially insisted he would oppose the rider, backed down, and sponsored the vote for cloture in the Senate. Final vote totals indicated enough bipartisan support for passage, but also enough bipartisan opposition that had Obama vetoed Cromnibus, his veto would have stuck.Footnote ¹⁵¹

In the end, a sufficient interest-based bipartisan coalition in Congress in favor of the campaign finance rider combined with Obama's concern that vetoing Cromnibus would lead to appropriations much less favorable to his spending priorities, ensured that the multiple legislative trajectory strategy could succeed in allowing the wealthy to contribute more, rather than less, to political party building. Any solution to the initial puzzle we posed also must be able to account for this deregulatory success.

4.1. Changed political environment

Ideological polarization in Congress, defined as the growing difference between Congresspersons of opposing parties and their party ideologies, increased from a low at the start of the 1970s—around the time of the most extensive enacted campaign finance reform—to today.Footnote ¹⁵⁴ Not only does polarization limit possibilities for true bipartisan consensus, in which majorities of members of both parties agree on policy positions. It also limits possibilities for what Dwyer and Farrar-Myers label cross-partisanship, in which a legislative coalition is “primarily made up of legislators from one party with a small but significant number of legislators from the other party.”Footnote ¹⁵⁵ Despite its name, the 2002 BCRA exemplified cross-partisanship, not full bipartisanship, given that almost all Democrats and a substantial number but still a minority of Republicans, voted to enact the law.Footnote ¹⁵⁶

From about the mid-1970s, polarization among voters—mass polarization—also rose.Footnote ¹⁵⁷ Democrats and Republicans sort themselves out on such issues as gay rights, abortion, and immigration, with Democrats largely liberal, and Republicans largely conservative.Footnote ¹⁵⁸

In today's polarized political environment, bipartisan public agreement on campaign finance is unusual, and so may not incentivize cross-partisan compromise in Congress on this issue as much as it would if the public agreed on more issues across party lines. Similarly, in the absence of broader cross-partisan cooperation in Congress on multiple issues, members of Congress are less incentivized to trade votes across party lines to resolve multiple issues simultaneously. This makes it harder to pass campaign finance reform restricting the influence of moneyed interests in federal electoral politics.

Indeed, post-Citizens-United, the opposing positions of party elites on campaign finance issues initially hardened. Congressional Democrats and the White House touted disclosure to promote transparency, dismantle corruption, and uphold democratic principles.Footnote ¹⁵⁹ Congressional Republicans—some of whom had supported increased disclosure prior to Citizens’ United—broadcast highly unified opposition to expanding disclosure. Republicans erroneously equated small dollar contributions to Democrats—exempt from disclosure due to their small size—to dark money, while asserting that enhanced disclosure of dark money chills political donors’ free speech rights by dissuading them from expenditures for political advocacy.Footnote ¹⁶⁰

As well, generally increasing ideological and issue polarization at the elite and mass levels is accompanied by dramatically increased mass affective polarization. This is typically measured using a feeling thermometer score or a scale assessing the difference between how much a person likes or dislikes their in-party and likes or dislikes their out-party.Footnote ¹⁶¹ In a survey conducted about the time of Citizens United, Iyengar et al. found that Americans were more affectively polarized across party lines than they had been fifty years prior, and that affective evaluation of the out-party had declined dramatically since 1988.Footnote ¹⁶²

At this point, many Republicans and Democrats view each other with “outright hostility.”Footnote ¹⁶³ By 2016, the majority in both parties held very unfavorable views of the opposition, associating positive traits with their own party and negative traits with opponents.Footnote ¹⁶⁴ Some partisans now perceive opposing partisans as less than human.Footnote ¹⁶⁵ Mass affective polarization to this degree should further diminish any electoral benefit Congressional Democrats and Republicans might perceive to flow from working together to respond to public demand for campaign finance reform, notwithstanding that this particular issue-demand remains cross-partisan. This is especially so given that in the twenty-first century, the campaign finance issue is insufficiently salient for large numbers of voters to bring it up spontaneously as among the one or two most important issues facing the country (see Section 1).

Incentives for working across the aisle to reach sufficient cross-partisan agreement to enact legislation on any issue, including campaign finance, are further decreased by what Lee refers to as precarious Congressional majorities.Footnote ¹⁶⁶ Contrary to politics in most of the twentieth century, in the twenty-first century, Democrats and Republicans compete for control of Congress at close to parity.Footnote ¹⁶⁷ Precarious majorities, especially when superimposed on political polarization, cause members of both parties to burnish their own image while undermining that of the opposition, rather than to cooperate in governance.Footnote ¹⁶⁸ This is consistent with the pattern of legislative success vs. failure that we observe in the multiple trajectories ideal type (see Section 3) in which, post-Citizens United, all reform efforts of this type depicted in Figure 2 to curtail the influence of “big money” in federal electoral politics failed, whereas 75% of such efforts in the twentieth century succeeded.

Whereas successful twentieth century multiple trajectories efforts were constructed strategically to appeal sufficiently across party lines to achieve favorable votes against hurdles set by procedural rules, the post-2010 failed efforts of this type represent symbolic politics. So too does the repeated introduction by Democrats of bills that propose to bring dark money into the light by enhancing disclosure and which fail to get even Committee action. As Senator Whitehouse (D-RI) proclaimed after the 2012 Disclose Act failed to be reported out of committee in a now Republican-controlled House, “We'll be back again, and again, and again… I don't care if we have to do this seven times or 77 times.”Footnote ¹⁶⁹

At the same time, post-BCRA, the priorities of interest organizations and philanthropies typically concerned with money in politics, have shifted somewhat. For example, Common Cause, which helped build coalitions from the 1970s to the BCRA to reduce “big money's” role in campaign finance, still focuses on this issue but has made such issues as combatting gerrymandering, constructing fair maps for redistricting, and enhancing voting rights and access more important priorities.Footnote ¹⁷⁰ When the Democracy Fund fielded their 2021-–2022 survey asking seventy private foundations concerned with the health of American democracy about their current compared to past funding priorities, its ensuing report noted that campaign finance was receiving lesser funding efforts than before. Meanwhile, “survey respondents cited efforts to protect voting rights (76 percent), election administration (73 percent), and voter engagement (86 percent), most often when describing the work that they funded in 2021-2022.”Footnote ¹⁷¹ Such strategic reallocation of priorities consistent with emerging issues may also have diminished political elites’ incentives for coalition building to reduce the influence of moneyed interests in federal campaign finance.Footnote ¹⁷²

Finally, no matter how many bills proponents of curbing “big money” in federal campaign finance introduce in Congress, the constraining power of procedural rules enabling political minorities to forestall that reform now looms very large, given todays’ high levels of elite political polarization combined with precarious Congressional majorities. The super-majoritarian requirements of U.S. Madisonian democracy have not changed. Yet combined changes in the political environment dramatically diminished incentives for the cross-partisanship required to enact more restrictive campaign finance reform legislation in the face of these super-majoritarian requirements.

4.2. Changed media environment

Factoring into our puzzle solving are changes in the media environment that began with the rise of right-wing radio pundits, such as Rush Limbaugh, and the advent of Fox News in the late 1980s–1990s.Footnote ¹⁷³ These changes came to fruition in a twenty-first century media landscape characterized by fragmented niche partisan broadcast and digital media.Footnote ¹⁷⁴ In such a media environment, elected officials of all parties are incentivized to stand on visibly oppositional partisan ground. These tendencies are exacerbated because highly partisan media pundits elevate the in-party while denigrating opponents.Footnote ¹⁷⁵ Pundits also police the ideological purity of “their” party elites by calling out apostates.Footnote ¹⁷⁶ In this environment, Republicans who mistakenly view their electorate as more conservative than it is, may be particularly motivated to take partisan stances conflicting with their voters’ real views, including on issues like campaign finance.Footnote ¹⁷⁷

When the Watergate scandal occurred, setting the agenda for the 1974 FECA, there were just three television networks each with a mass audience that crossed partisan lines.Footnote ¹⁷⁸ Hard news was considered objective, and distinct from opinion.Footnote ¹⁷⁹ A 1972 survey reported that the CBS news anchor Walter Cronkite, was “the most trusted man” in US public life.Footnote ¹⁸⁰ From 1980-2012, as niche and partisan cable and digital news developed and “news” increasingly fused with opinion journalism,Footnote ¹⁸¹ the three main networks lost over 50% of their viewership—about 26.4 million nightly news consumers,Footnote ¹⁸² while the landscape of “narrowcast” media outlets exploded. Also, partisan media selectivity, though sometimes exaggerated, became more common.Footnote ¹⁸³

Once cross-partisan consumption of media aiming for the broadest possible audience is replaced by the consumption of partisan niche news by opposing partisans, it becomes much harder for a socially constructed corruption scandal to reverberate broadly to the mass public across party lines (see Section 3). At multiple points in the twentieth century, non-partisan mass media-publicized wrongdoing sparked outrage across the political spectrum, in turn shaping the strategic calculations of elected officials of both parties, such that substantial numbers of them supported campaign finance reform (see Section 1). Now, however, when one party and their allied media call out their opponents for corruption, those opponents are likely to frame the call-out as a partisan witch hunt, with their core voting base following along.Footnote ¹⁸⁴ Such was the case with multiple wrongdoings by President Trump that in recent years Democrats and aligned media framed as scandal requiring investigation and/or legal action, but Republican politicians and their aligned media framed as a witch hunt. About 80% of Republicans in the public agreed with this idea.Footnote ¹⁸⁵

In short, for all the reasons detailed in Section 3, although campaign finance reformers today continue to construct campaign finance scandals with corruption framing, the likelihood that this results in enacted reform has plummeted. At the same time, the Supreme Court has narrowed the legal persuasiveness of corruption to blatant quid pro corruption—bribery—in which an elected official or candidate explicitly promises a financial donor's preferred policies in exchange for their donation.Footnote ¹⁸⁶

In May 2024, Donald Trump urged a group of oil executives to contribute a combined one billion dollars to his Presidential campaign, in exchange for a promise to, if elected, sign executive orders rolling back President Biden's green policy agenda. Some commentators called this “a scandal,” while others said it placed in bold relief the problems with current “laws governing money in politics.”Footnote ¹⁸⁷ Yet “unless Trump had written on a napkin during the meeting an exact amount of money that he wanted deposited in a specific campaign vehicle in exchange for a specific policy goal,” his behavior was unlikely to constitute quid pro quo corruption under the Supreme Court's current interpretations.Footnote ¹⁸⁸ That campaign finance reformers as well as opponents know these interpretations, and Democrats and Republicans now are closely balanced in the House and Senate, diminishes reformers’ incentives to expend political capital doing the hard negotiating needed to seriously promote federal campaign finance reform restricting the influence of moneyed interests.

4.3. Changed legal environment

Analyzing the Supreme Court as agenda-setter led us to focus on the potential import of the changing legal environment for undermining the likelihood of successful campaign finance reform. The narrowing of corruption framing as a justification for campaign finance regulation and the corresponding expanding constraint on constitutionally permissible reform strategies from the Supreme Court-endorsed “money is speech” frame, are key aspects of legal change that, combined with the political and media changes outlined above, ensured the absence of successful campaign finance reform post-Citizens United.

As Southworth reports, the 50-year dance between a growing conservative legal movement and an increasingly responsive Supreme Court is usefully periodized into three phases.Footnote ¹⁸⁹ In the first, running roughly from the lead-up to Buckley until the late 1980s, neither the free speech litigation campaign nor the Supreme Court's response was highly partisan. In Buckley, a right-left coalition of litigants and their amici supporters challenged the 1974 FECA (see Section 1). Southworth describes the Court's response in this period as involving “compromise decisions,” and “temperate discourse,” with alignments among the justices “that did not hew closely to partisan lines.”Footnote ¹⁹⁰ The nine justices deciding Buckley had no “settled views” on whether it was constitutional to regulate campaign finance “and their votes crossed ideological and partisan lines.”Footnote ¹⁹¹

From the 1990s to 2006—encompassing the Court's Austin and McConnell rulings (see Section 1), “the Court mostly deferred to legislators.” However, “an assertive bloc of dissenting justices, linked with a growing and increasingly influential conservative legal movement expressed adamant opposition to most campaign finance regulation.”Footnote ¹⁹² In this era, the justices in the majority and dissent became increasingly ideological and polemical. Mutch argued that Austin was “a turning point” cementing an “unbridgeable ideological gulf between the majority and dissenting opinions.”Footnote ¹⁹³

A third phase, beginning in 2006 with Samuel Alito's elevation to the Court and continuing through the present, is characterized by polarized judicial coalitions mirroring political partisanship. Justices appointed by Democrats defend campaign finance reform attempting to lessen the influence of moneyed interests, and those appointed by Republicans vote against its constitutionality. In their jurisprudential and empirical assumptions, the two groups of justices occupy “entirely different…universes.”Footnote ¹⁹⁴ Illustrative is Citizens United, in which the dissent argued that presuming corporations have the same free speech rights as individuals, as did the majority, deviates radically from prior precedent and “rejects…the common sense of the American people…who have fought against the corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”Footnote ¹⁹⁵

When in the 1980s, President Reagan filled vacant Supreme Court seats that had been occupied by liberals or moderates with “committed conservatives,” the Court began moving to the right.Footnote ¹⁹⁶ As the Federalist Society became a powerful credentialing and networking forum for the federal judiciary, “conservative political entrepreneurs and their patrons” looked to it and to “other [newly built] organizations and professional networks to challenge the legal establishment and the constitutional vision reflected in the Warren Court's rulings.”Footnote ¹⁹⁷ They “cultivated ideologically committed and highly credentialed lawyers to formulate arguments and lend those arguments credibility.”Footnote ¹⁹⁸

In short, both the conservative lawyers bringing precedent-challenging campaign finance litigation and conservative federal judges, including those on the Supreme Court, were networked together in a social world that was simultaneously legal and partisan-political. It was a “transformed political system” in which the political parties increasingly “share control over policymaking and law.”Footnote ¹⁹⁹ The conservative legal movement's litigation campaign against campaign finance regulation was thus part of a broader, increasingly fused, and polarized partisan-political and constitutional-jurisprudential culture and set of institutions. The litigators advanced and coordinated a steady supply of variably nuanced free speech arguments that encouraged the Court to take a more extreme anti-campaign finance regulatory stance, while also responding to Court cues about additional anti-reform litigation likely to be successful.Footnote ²⁰⁰

With respect to the supply of campaign finance cases heard by the Supreme Court, Southworth notes that it is marked by the same three periods as mark the Court's campaign finance jurisprudence. In the first period, “entrepreneurial scholars and lawyers developed some of the ideas necessary to create new constitutional law,” but the litigation was not “particularly partisan.”Footnote ²⁰¹ In the second period, a full-blown conservative legal movement coordinated strategic litigation using “a capacious speech frame that facilitated building a coalition to support the challenges.”Footnote ²⁰² This movement “brought along some groups that would seem unlikely…to benefit from unregulated spending in politics.”Footnote ²⁰³

The third period, from the lead up to Citizens United through the present, has involved “ambitious test cases” decided by a Supreme Court “controlled by movement conservatives and…receptive to reform opponents’ arguments.”Footnote ²⁰⁴ In this phase, “big money” actors are still funding the litigation, but non-profits purporting to represent the “little guy” are bringing the cases, giving a GOP-allied Supreme Court majority cover to portray the campaign as the mobilization of ordinary citizens fighting for their right to free speech. That “a few center-left groups” joined amicus supporters “from all constituencies of the GOP coalition,” also provided the Court majority some cover for its politically partisan approach that “overturned major precedents.”Footnote ²⁰⁵

Reinforcing this picture of an increasingly fused partisan political and legal environment, not only for campaign finance reform but for U.S. federal policy making more broadly, is Silverstein's argument about juridification.Footnote ²⁰⁶ For Silverstein, the juridification of public policy involves “relying on legal process and legal arguments, using legal language [and] substituting or replacing ordinary politics with judicial decisions and legal formality.”Footnote ²⁰⁷ Although juridification always has “been part of American politics, it is now more frequent, more important, and more deeply embedded than ever before.”Footnote ²⁰⁸

On the one hand, and as in matters of civil rights, school integration, prison reform, environmental justice, and the regulation of tobacco, activists may rely on litigation under the constitution or appropriate federal statutes because they perceive that furthering their policy goals through partisan politics is unlikely, or because they perceive litigation to be a more moral or effective reform avenue. On the other hand, and as they did in campaign finance, activists may rely on litigation to undermine enacted reforms or forestall potential reforms that, in the absence of successful litigation, might be proposed to restrict the influence of “big money” in the future In either case, juridification “can shape and constrain the political and policy horizon.”Footnote ²⁰⁹

The interactive and iterative reform process laid out by Silverstein in describing juridification across diverse policy arenasFootnote ²¹⁰ captures the nature of reform efforts within our Supreme Court as agenda-setter ideal type trajectory for campaign finance reform. It emphasizes how reform efforts are bound together over time through policy feedback and political and legal learning. Where some reform advocates did turn to the courts to enforce previously enacted regulation (see Section 1), substantial juridification resulted from opponents of restrictive regulation litigating the constitutionality of campaign finance regulation. The Court's agenda-setting in campaign finance is an integral part of what Silverstein labels deconstructive juridification,Footnote ²¹¹ in that a Court out of alignment with the Congress and President enacting the 2002 BCRA, dramatically deregulated campaign finance. This in turn dramatically increased the influence of “big money” in U.S. federal electoral politics. However, consistent with the failure of repeated attempts to expand disclosure in response to Citizens United, the chances of additional reform to curb the influence of moneyed interests in federal campaign finance are now dismal.