Buckley 2.0: How Would The Buckley Court Decide Buckley Today?
22 University of Pennsylvania Journal of Constitutional Law ___ (spring 2020)
81 Pages Posted: 11 May 2019 Last revised: 6 Aug 2019
Date Written: 2019
If you read Supreme Court campaign finance cases, you will be struck by the disconnect between the lofty rhetoric used to justify the constitutional protections afforded political speech and the impoverished sound bites and hyperbolic attack ads that dominate contemporary electoral communications. The origin of this disconnect is in large part two phenomena. First, in the last decade the Court has failed to take the factual record seriously and, as a result, makes generalizations that are belied by contemporary campaign practices. Relatedly, the Court has adopted doctrines that co-exist in uneasy relationships with campaign finance doctrines of longstanding. As a result, the Court has created an alternative universe that only first amendment absolutists find credible, and it has constitutionalized an increasingly corrupt electoral landscape.
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