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Abstract:
This Article uses the U.S. Supreme Court's recent opinion in McConnell v. FEC to argue that the law should play a central role in reducing the impact of disparities in wealth on political participation. In upholding large parts of the Bipartisan Campaign Reform Act, the Court in McConnell acknowledged the adverse impact of concentrated wealth on widespread democratic participation and self-government. Even in the aftermath of the reforms upheld in McConnell, however, a small, wealthy and homogenous donor class continues to make relatively large contributions that fund the bulk of American politics. Less than one percent of the U.S. population makes financial contributions over $200 to federal candidates, and these contributions represent the vast majority of funds that candidates receive from individuals. Of those who contribute over $200, approximately 85 percent have household incomes of $100,000 or more, 70 percent are male, and 96 percent are white. This donor class effectively determines which candidates possess the resources to run viable campaigns. Instead of preventing corruption or equalizing funds between candidates, this Article proposes that the primary goal of future reforms should be to reduce the impact of wealth and empower more citizens to participate in the funding of campaigns. On average, candidates should receive a larger percentage of their funds from a greater number of people in smaller contribution amounts. After responding to class-blind campaign reform opponents' claims that the impact of wealth on democratic participation warrants minimal concern, this Article examines concrete proposals. Reforms like matching funds and tax credits for smaller contributions, combined with emerging technology, would enable more Americans to make contributions and would enhance their voices in our democracy. Consistent with the Court's approach in McConnell, reforms that empower smaller contributors prompt candidates and political committees to raise funds from a greater number of persons and tangibly benefit public participation in political debate.

Campaign finance, reform, class, class-blind, class-sensitive, contribution, donor, Buckley, property, wealth, participation, democracy, McConnell, Bipartisan Campaign Reform Act, BCRA, Presidential Funding Act, McCain-Feingold, self-government, tax credit, matching fund, voucher, public financing

Abstract:
In the wake of closely contested elections, calls for laws that require voters to present photo identification as a condition to cast a ballot have become pervasive. Advocates tend to rely on two rhetorical devices: (1) anecdotes about a couple of elections tainted by voter fraud; and (2) common sense arguments that voters should produce photo identification because the cards are required to board airplanes, buy alcohol, and engage in other activities. This Article explains the analytical shortcomings of anecdote, analogy, and intuition, and applies a cost-benefit approach generally overlooked in election law scholarship. Rather than rushing to impose a photo identification requirement for voting, policymakers should instead examine empirical data to weigh the costs and benefits of such a requirement. Existing data suggests that the number of legitimate voters who would fail to bring photo identification to the polls is several times higher than the number of fraudulent voters, and that a photo identification requirement would produce political outcomes that are less reflective of the electorate as a whole. Policymakers should await better empirical studies before imposing potentially antidemocratic measures. Judges, in turn, should demand statistical data to ensure that voter identification procedures are appropriately tailored to deter fraudulent voters rather than legitimate ones and do not disproportionately exclude protected classes of voters.

elections, voter identification, empirical studies

Abstract:
The First Amendment doctrine governing campaign finance law allows judicial outcomes to turn on often unstated political assumptions about the appropriate role of money in campaigns. As illustrated by the conflicting opinions of different U.S. Supreme Court Justices in McConnell v. FEC, current narrow tailoring and substantial overbreadth tests provide inadequate guidance and compel judges to rely on their own political assumptions in balancing the need for regulation against the right of free speech. Judges skeptical of campaign reform err on the side of protecting speech, while judges supportive of reform lean toward tolerating regulations said to prevent corruption. To resolve the conflict and fill the void in current doctrine, this Article identifies four democratic values that judges should balance in deciding whether campaign finance laws restrict too much protected speech: democratic deliberation, widespread participation, individual autonomy, and electoral competition. While political assumptions may influence judicial balancing of these values, this new approach is a better compromise of sensitivity to context, consideration of substantive democratic values, and judicial guidance than the alternatives. Honest exchange about how courts should balance relevant values in particular contexts, rather than a glossing over of tough issues with abstract rhetoric and mechanical categories, will allow for a more coherent doctrine.

Campaign reform, campaign finance, First Amendment, speech, deference, narrow tailoring, overbreadth, manageable, manageability, political thicket, justiciable, McConnell v. FEC, 527, BCRA, Bipartisan Campaign Reform Act, FECA, Federal Election Campaign Act, soft money, issue ads

Abstract:
This Article examines the judicial opinions in Bush v. Gore in order to expose new and critical insights about the rules and standards that govern democracy. Although commentators have analyzed the rules versus standards debate in other contexts, none have addressed the effect of form on the law of the political process. This Article is the first to make key observations about form, as well as its unique importance to the regulation of democracy. The Article proposes that the choice between rules and standards in the law that governs democracy is motivated by democratic sensibilities. Individuals harbor different conceptions of how democracy is supposed to work, and about which actors are least biased, most competent, and generally best positioned to make decisions about the workings of democracy. Based on these assumptions, lawmakers and decisionmakers sometimes choose to formulate and interpret legal directives as more rule-like or more standard-like as a means of allocating what they consider to be an appropriate amount of discretion to a particular actor. Form serves an essential function in the legal structure that regulates democracy, and is a necessary consideration in analyzing electoral reforms and the jurisprudence of the political process.

Abstract:
Race theorists have noted that racial discrimination has shaped the existing distribution of economic resources, and have used this observation to justify reparations, to defend affirmative action, and to call for other legal changes that would improve the socioeconomic status of people of color. This Article takes the theorists' observation further. Property has a political function. Racially discriminatory allocation rules not only impose economic and social harms upon people of color, but also impair the ability of these people to engage in political expression and participation through structures such as the privately financed campaign finance system.

property, critical race theory, discrimination, wealth, distribution, allocation, media, campaign finance, buckley, economic, political, liberty, liberties, value, reparations, affirmative action

Abstract:
Proposed campaign finance reforms and critiques of current campaign finance jurisprudence are incomplete because campaign finance reformers overlook social and historical realities related to race. This Article uses race as an analytical factor to develop a more comprehensive understanding of campaign finance. Past state-sanctioned discrimination has contributed to current racial disparities in property. Under the current campaign finance system, these disparities in property shape the racial distribution of political influence no less than poll taxes, literacy tests, or at-large electoral districts. Further, seemingly neutral campaign finance doctrine threatens to lead to future racial disparities in the political distribution of societal resources. The consideration of race also allows for an examination of other critical issues ignored by reformers, such as racially selective enforcement of campaign finance regulations and the adverse impact of some reform provisions on minority political participation.

constitutional law, first amendment, speech, equality, property, critical race theory, discrimination, wealth, distribution, allocation, media, campaign finance, buckley, economic, political, liberty, liberties, value, reparations, affirmative action, voting, rights, Bipartisan

Abstract:
Although African Americans cast a majority of ballots rejected by counting machines following the 2000 presidential election in Florida, legal academic commentators have not grappled with the significance of race in their discussions of Bush v. Gore. This Essay uses race to expose structural shortcomings of merit-based assumptions about democracy embedded in the U.S. Supreme Court's majority per curiam. The Court prohibited a manual count of imperfectly marked ballots, effectively conditioning membership in political community on individual capacity to produce a machine-readable ballot. Despite the Court's individualized focus, however, merit-based assumptions about democracy interfere primarily not with individual rights, but with the ability of groups of voters like African Americans to identify with one another as a political community, to create alliances with others of different backgrounds, and to use the vote to enact political change. Further, merit-based criteria convey an expressive harm of exclusion that carries particular potency in light of a history of poll taxes, literacy tests, and other devices used to suppress political participation. While the merit-based vision's adverse impact on African Americans should prompt concern in and of itself, the shortcomings of the vision adversely impact many other Americans.

Bush, Gore, race, undervote, overvote, vote, voting, poll tax, literacy test, merit, inclusion, inclusionary, merit-based, affirmative action, discrimination, racism, African American, black, white, ballot, colorblind, democratic theory, democracy, participation, politics, exclusion, Bush, Gore, clear intent, constitutive, expressive

Abstract:
This essay argues that the U.S. Supreme Court's opinion in McConnell v. FEC illustrates three important lessons about judicial review in the distinct context of campaign finance: (1) precedent counts; (2) pragmatism beats platitudes; and (3) legislative judgments deserve respect. According to early critics of McConnell, the Court abdicated its responsibilities in upholding the major provisions of the Bipartisan Campaign Reform Act. Critics claimed that the Court did not sufficiently explain its decisions, abandoned free speech principles, and ignored the self-entrenching motives of incumbents who passed the law. This Essay responds to these claims and asserts that they must be balanced against the gains that stem from tight language that emphasizes precedent, pragmatic consideration of competing interests and context, and congressional expertise in the political landscape of campaign finance. In light of the limited competence and authority of judges to address political questions unique to campaign finance, adherence to precedent in deciding campaign finance cases enhances judicial credibility and provides legislatures a more stable framework for lawmaking. At the same time, however, campaign finance features evolving political practices, coalitions, organizations, and technologies that courts often cannot anticipate. When Congress identifies emerging practices that threaten democracy, a court should apply past cases pragmatically to the facts before it and avoid sweeping dogma that may grow dated and contribute to bad results in future cases. Campaign finance is a complex area that involves competing considerations rather than absolutes. As a result, textured and multifaceted judicial review of campaign finance reforms is preferable to review that is either one-dimensionally deferential or one-dimensionally skeptical.

campaign finance, Bipartisan Campaign Reform Act, judicial review