The Supreme Court dominates American campaign finance law. Citizens United v. Federal Election Commission1 dramatically illustrates this basic truth, but Citizens United is nothing new. The Court has been the preeminent force in shaping and constraining our campaign finance laws since Buckley v. Valeo,2 and the Court's role as arbiter of what regulations may or may not be enforced only continues to grow. The President of the United States can wag his finger at the Court during the State of the Union Address and denounce its Citizens United ruling to the Justices' faces on national television,3 but even he does not propose to challenge the Court's decision. Instead, the President proposes only to regulate in those areas where the Court indicated some regulation is still permissible. According to public opinion polls, as much as two-thirds4 of the population opposes the Court's holding that corporations and unions have an unlimited right to spend money in elections. But the public is, in practice, powerless to have the law changed.
The central features of American campaign finance law are the product of the Court's actions and opinions. Unlike many other Western democracies, which impose monetary limits on campaign spending, the United States does not do so because the Court has said that is unconstitutional. In so doing, the Court has sustained the ability of wealthy candidates to convert their personal resources to campaign uses without constraint and has also upheld the ability of independent organizations and groups to spend without limit to influence election outcomes. Similarly, the Court has decided what political activity can be deemed election-related, and thus regulated by campaign finance law, and what political activity must be treated as beyond the scope of campaign regulation, even if that activity plainly has direct implications for political campaigns. So, too, the Court has defined-narrowly-the permissible purposes of campaign finance regulation. In so doing, it has rejected as a legitimate regulatory purpose-accepted by many other Western democraciesthe promotion of political equality. To be sure, the campaign finance laws that we have are the ones that are adopted by our elected representatives in Congress or state and local legislatures, or by the people, or acting through state or local voter initiatives. But the Court has consistently-and, particularly in the last few years, aggressively-had the last word in deciding which laws may be allowed to take effect.
Court determination of campaign finance law might not be a bad thing if the Court's campaign finance jurisprudence were stable, coherent, workable, and closely tied to the text and values of the Constitution. Unfortunately, our Court-determined campaign finance law is none of these things. As Citizens United's overturning of Austin v. Michigan Chamber of Commerce5 and the electioneering communication portion of McConnell v. Federal Election Commission6 demonstrates, the Court's jurisprudence has hardly been a model of stability. Nor are the results particularly coherent. For the two decades between Austin and Citizens United, the jurisprudence governing corporate and union election spending barred restrictions on spending in ballot proposition elections but, oddly, permitted spending prohibitions in candidate elections.Citizens United eliminated that anomalous distinction by rejecting the idea that the corporate form poses any special dangers that justify special restrictions. But Citizens United left in place-at least for now-laws completely barring corporations and unions from making contributions to candidates and parties. Banning corporate contributions seems at odds with Citizens United's view that corporations do not present special dangers justifying especially restrictive regulation, while the radical difference in the treatment of corporate contributions and expenditures seems doctrinally inconsistent.7
On Dejudicializing American Campaign Finance Law,
Ga. St. U. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/911