Shrink Missouri, Campaign Finance, and 'the Thing that Wouldn't Leave'

Posted: 31 Jan 2001 Last revised: 24 Jul 2013

See all articles by Richard L. Hasen

Richard L. Hasen

University of California, Irvine School of Law


The United States Supreme Court decided Buckley v. Valeo in 1976. Among other things, the case upheld limits on campaign contributions but struck down limits on campaign expenditures. The per curiam opinion was drafted hastily to be in time for the 1976 elections and featured additional separate opinions from five of the eight Justices who decided the case. Members of the Supreme Court have since criticized various aspects of the opinion, including its decision to judge campaign contribution limits under a more deferntial standard than campaign expenditure limits. Yet despite such criticism and many challenges, the decision has appeared to be an immovable object.

Perhaps change is finally coming. This past term, the Supreme Court decided Nixon v. Shrink Missouri Government PAC. Shrink Missouri upheld against First Amendment challenge a Missouri law limiting individual campaign contributions to statewide candidates to $1,075. The outcome of the case is unremarkable following Buckley's decision to uphold the federal contribution limit of $1,000, but the reasoning in Shrink Missouri is quite significant. In four separate ways, the Court in Shrink Missouri lowered the constitutional bar for laws limiting campaign contributions. The Court (1) ratcheted down the level of scrutiny applicable to contribution limit challenges; (2) expanded the definition of "corruption" and the "appearance of corruption" necessary to sustain contribution limits; (3) lowered the evidentiary burden for a government defending contribution limits; and (4) created a very difficult test for those challenging a contribution limit as unconstitutionally low. In combination, the opinion shows dramatic new deference toward contribution limits. A key quetion remaining open after Shrink Missouri is the extent to which this deference signals a broader willingness of the Court to allow regulation of campaign finance. The case may be read that way, but it also may be read as upholding Buckley's key disticnction between contributions and expenditures.

We probably will not learn whether the first or second interpetation is correct until Supreme Court personnel changes. Nonetheless, even if the Court for the time being continues with Buckley's distinction between contributions and expenditures, the growth of "issue advocacy" and "soft money" make the distinction increasingly untenable. The tension created by these new campaign finance forms suggests that Buckley will be overruled. But it might be overruled toward deregulation rather than greater regulation. The answer depends upon whom the next President appoints to the Supreme Court.

Suggested Citation

Hasen, Richard L., Shrink Missouri, Campaign Finance, and 'the Thing that Wouldn't Leave'. Constitutional Commentary, Vol. 17, No. 3, Available at SSRN:

Richard L. Hasen (Contact Author)

University of California, Irvine School of Law ( email )

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