"The Newer Incoherence: Competition, Social Science, and Balancing in Campaign Finance Law After Randall v. Sorrell "

I have posted this draft on SSRN. This is forthcoming in the Ohio State Law Journal symposium (live symposium Sept. 29-30) on "The Roberts Court and Election Law." This is still very much a work in progress. Comments welcome! Here is the abstract:

This article, part of a symposium on "Election Law and the Roberts Court" in the Ohio State Law Journal, considers the Supreme Court's recent decision in Randall v. Sorrell (2006) striking down Vermont's campaign expenditure and contribution limits. The Supreme Court's campaign finance jurisprudence before Randall was marked by swings in doctrine and general incoherence. At first glance, the plurality opinion in Randall appears to add a level of coherence to campaign finance law by judging the constitutionality of such laws through an assessment of the relationship between campaign contribution limits and political competition. Alas, the appearance of coherence is illusory, and there is little reason to believe Randall marks a significant move by the Courts to embrace the "political markets" approach.

As Part II explains, the Court in Randall has not embraced competition as the organizing principle for analyzing the constitutionality of all campaign finance laws or election laws. The focus on competition - which garnered the votes of only three Justices, and one of the three noncommittally - appears to be the outcome of a compromise between Justice Breyer, who wanted to preserve as much of existing doctrine as possible against a deregulationist trend, and the two newest Justices on the Court. Existing Supreme Court election law doctrine, including its recent partisan gerrymandering jurisprudence, also rejects the anticompetition principle as a means of deciding election law cases.

Part III then turns from external coherence to the internal coherence of the competition test for low contribution limits, finding the test less predictable and coherent than its technocratic nature suggests. Following Randall, it appears that challenges to low contribution limits will turn - or at least appear to turn - upon fact-intensive political science expert testimony about the amount of money necessary to run a competitive race in the relevant jurisdiction. But such testimony often will be speculative when it comes to whether enough money may be raised to insure a competitive race. Court decisions could well turn upon a thin credibility determination to be made by the court, a determination that may depend upon each judge's predisposition to favor or oppose the particular campaign finance regulation.

Part IV advocates that courts engage in a careful and honest balancing that gives considerable deference to the value judgments made by states in enacting campaign finance laws, but then use close scrutiny to make sure the measure is carefully drawn to meet those goals. This kind of honest balancing was impossible in Randall because of the Court's ostensible rejection of the political equality rationale for campaign finance regulation. The real question the Randall Court should have asked is whether the Vermont law was closely drawn to promote political equality and, if so, whether the costs to individuals and groups who wanted to mobilize for political action was too great to allow the law to go forward despite its gains in promoting political equality.

Posted by Rick Hasen at August 30, 2006 08:00 AM