“Williams-Yulee and the Anomaly of Campaign Finance Law”

Noah Lindell has written this comment for the Yale Law Journal. A taste:

This Comment enters an existing debate over how courts should analyze campaign finance laws and other election regulations. Judges and authors have noted that the Court has left campaign finance out of the jurisprudential framework for election law cases.12 Scholars have sparred over whether this situation should be changed and, if so, what campaign finance doctrine should look like.13 At least two authors have directly advocated for using some form of balancing analysis in campaign finance challenges, though neither proposes using the Burdick test.14 By explicitly arguing that the Court should fold campaign finance law into the Burdick test, this Comment adds a different perspective to a growing literature debating whether and how to unify the domains of election law. It also provides a new way to examine Williams-Yulee itself. As Williams-Yulee is a relatively new decision, it has not yet generated substantial academic scholarship. Several early commentators lamented the Court’s approach to strict scrutiny analysis, but many of them simply argued that the Court should have decided the case the other way.15 This Comment, by contrast, situates Williams-Yulee in a broader framework, reexamining the divide between the campaign finance and election law doctrines.

This Comment proceeds in two Parts. Part I discusses the Court’s ruling in Williams-Yulee and explores how the analysis developed to this point. It then discusses Williams-Yulee’s potential to affect First and Fourteenth Amendment cases. Part II lays out an alternative jurisprudential path. It describes how campaign finance law diverged from the rest of election law, explains the modern Burdick test, and shows how the test’s application would affect the analysis in Williams-Yulee and other campaign finance cases. Part II also addresses the most common theoretical arguments against using the Burdick test in this area.

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