Restraint and Responsibility: Judicial Review of Campaign Reform

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.

Keywords: 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

JEL Classifications: D7, K4

Accepted Paper Series