The Deep Patterns of Campaign Finance Law

62 Pages Posted: 15 Mar 2016 Last revised: 1 Aug 2017

See all articles by Jacob Eisler

Jacob Eisler

Southampton Law School; University of Cambridge - Faculty of Law

Date Written: March 1, 2016

Abstract

Why has American campaign finance law long suffered from doctrinal confusion and sparked bitter ideological conflict? This article demonstrates that these attributes are rooted in a judicial dispute over the cognitive and social characteristics of central actors in elections. The article unpacks the foundations of campaign finance law through a multi-tiered analysis of case texts. It first explicates the doctrinal deficiencies that riddle the Supreme Court’s campaign finance jurisprudence. These flaws reflect the Court’s clumsy engagement with democratic theory, which has been an unrecognized driver of campaign finance law and the wellspring of the partisan dispute. Conservatives assert that the pillar of democracy is free participation in the marketplace of information, and subsequently reject restriction of campaign financing even when advanced in the name of anti-corruption. Conversely, liberals perceive democracy as vulnerable to systemic corruption from plutocratic influences and thus endorse regulatory oversight of campaign spending.

The latter half of the article excavates the origins of this conflict: the factions adopt divergent positions on the cognitive and social attributes of political actors (voters, candidates, donors, and public officials). As these positions inform the factions’ theories of democracy, the campaign finance quagmire can be traced to political and psychological assumptions present in the cases. Progress in campaign finance law demands revision of the relationship between these assumptions and contemporary electoral realities.

Keywords: campaign finance, partisanship, political theory, democracy, supreme court, psychology, citizens united, buckley, constitutional law, corruption, election law, American law

Suggested Citation

Eisler, Jacob, The Deep Patterns of Campaign Finance Law (March 1, 2016). 49 Connecticut Law Review 55 (2016); University of Cambridge Faculty of Law Research Paper No. 15/2016. Available at SSRN: https://ssrn.com/abstract=2747403

Jacob Eisler (Contact Author)

Southampton Law School ( email )

University Rd.
Southampton SO17 1BJ, Hampshire SO17 1LP
United Kingdom

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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