“Electoral Integrity in Campaign Finance Law”

Daniel Wiener and Benjamin Brickner have posted this draft on SSRN.  Here is the abstract:

In their dissenting opinion in McCutcheon v. FEC in 2014, four justices of the U.S. Supreme Court described the government’s interest in passing campaign finance laws in terms of “electoral integrity.” But while they referenced the concept and made clear its importance, the dissenters did not fully flesh out what it might mean for this area of law. With the makeup of the Court poised to change, the answer to this question could have broad implications for the Court’s future jurisprudence.

Drawing upon existing case law and our broader constitutional tradition, this Article highlights four criteria for judging whether elections have integrity with particular relevance to money in politics: representation, participation, competition, and information. The Article goes on to consider the impact that adopting these criteria would have on the viability of a range of policies, including contribution and spending limits, public financing, and disclosure. Although electoral integrity would not be a silver bullet to settle the many constitutional questions such measures implicate, taking it seriously as a government interest would still fundamentally reshape the Court’s approach to campaign finance in a more realistic, factually-grounded direction.

Part I of this Article explores the concept of electoral integrity in the Court’s jurisprudence, highlighting the extent to which it is a value rooted in the First Amendment, not antagonistic to it. Part II sets forth key criteria for judging electoral integrity that have particular relevance for campaign finance jurisprudence. Part III discusses how courts might apply such criteria in specific cases, including how they might use record evidence and other factual materials to answer key questions about how the political system actually functions. Part IV briefly addresses several hard doctrinal issues that would remain, and considers how the Court might think about these questions consistent with the broader approach outlined here.

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