Draft of My Article on McConnell v. FEC Now Available on SSRN

I have posted with SSRN a draft of my forthcoming article from the University of Pennsylvania Law Review election law symposium. The article, Buckley is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission, may be downloaded here. This is the abstract:

The Supreme Court's recent decision in McConnell v. Federal Election Commission marks the culmination of an effort begun in 2000 to shift the Court's campaign finance jurisprudence in an important, though potentially dangerous, direction. Under pre-2000 jurisprudence, the Court (with one notable exception) upheld campaign finance laws only when the government demonstrated with a reasonable amount of evidence that the laws were at least closely drawn to prevent corruption or the appearance of corruption. The new jurisprudence, while purporting to apply the same anticorruption standard, does so with a new and extensive deference to legislative judgments on both the need for campaign finance regulation and the proper means to achieve it. There are signs that this shift is not merely the slipping of existing standards, however. Rather, it appears that the Court's jurisprudence is moving in the direction proposed by Justice Breyer, toward upholding campaign finance laws that promote a kind of political equality, what Justice Breyer termed a "general participatory self-government objective."

This apparent shift might be welcome news for those who believe that the Court had been too restrictive of efforts to limit the role of money in politics in order to promote greater political equality. But the means by which the Court has undertaken the shift have proven problematic. The Court has continued to entertain the fiction that it is adhering to the anticorruption rationale of Buckley v. Valeo. The result is jurisprudential incoherence and a lead opinion in the most important campaign finance case in a generation that appears to pay only cursory attention to the First Amendment interests that must be balanced in evaluating any campaign finance regime.

Part I briefly surveys the pre-McConnell campaign finance jurisprudence, contrasting Buckley and the pre-2000 cases on the one hand, with the Court's three post-2000, pre-McConnell cases on the other. The recent trend, even before McConnell, is inconsistent with the Buckley rationale, at least as Buckley has been understood traditionally. The Court has replaced a general skepticism of campaign finance regulation with unprecedented deference to legislative determinations on both the need for regulation and the means to best achieve regulatory goals. Part II uses three examples from the McConnell joint majority opinion to demonstrate how the case fits into the new deferential post-2000 campaign finance jurisprudence. Part III points to signs apparent in the post-2000 jurisprudence and intensified in McConnell that the Court is moving toward endorsing the participatory self-government rationale for campaign finance regulation. Part IV argues that that if indeed the Court is moving toward endorsement of the participatory self-government rationale, it should do so more carefully. Thus far, the Court has given only lip service to the requirement that it balance competing interests and police campaign finance measures for legislative self-dealing. The part concludes by examining the danger that the Court eventually will eviscerate the distinction between contributions and expenditures without taking into account a key requirement of the participatory self-government rationale: the need for vibrant election-related participation by a wide group of non-governmental actors.

Posted by Rick Hasen at January 16, 2004 06:33 AM