Behavioral Decision Theory and Implications for the Supreme Court’s Campaign Finance Jurisprudence
Molly J. Walker Wilson
Saint Louis University - School of Law
Cardozo Law Review, Vol. 31, p. 679, 2010
Saint Louis U. Legal Studies Research Paper No. 2010-17
America stands at a moment in history when advances in the understanding of human decision-making are increasing the strategic efficacy of political strategy. As campaign spending for the presidential race reaches hundreds of millions of dollars, the potential for harnessing the power of psychological tactics becomes considerable. Meanwhile, the Supreme Court has characterized campaign money as “speech” and has required evidence of corruption or the appearance of corruption in order to uphold restrictions on campaign expenditures. Ultimately, the Court has rejected virtually all restrictions on campaign spending on the ground that expenditures, unlike contributions, do not contribute to corruption or the appearance of corruption. However, behavioral decision research and theory provide strong support for the notion that expenditures do corrupt the political process, because there is a nexus between campaign spending, strategic manipulation, and sub-optimal voting decisions. This Article applies behavioral research and theory to advance a new definition of “corruption,” arguing that there is a vital governmental interest in regulating campaign expenditures in order to limit manipulative campaign tactics and to reduce the existing inequities in access to channels of communication and persuasion.
Number of Pages in PDF File: 70Accepted Paper Series
Date posted: July 18, 2010 ; Last revised: August 3, 2010
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