Restraint and Responsibility: Judicial Review of Campaign Reform

Washington and Lee Law Review, Spring 2004 by Overton, Spencer

The constitutional doctrine governing campaign finance law allows judicial outcomes to turn on often unstated political assumptions. As illustrated by the conflicting opinions of different United States Supreme Court Justices in McConnell v. FEC, current narrow tailoring and substantial overbreadth doctrines provide inadequate guidance for balancing the need for regulation against the right of free speech. This Article identifies four democratic values that judges should balance in deciding whether campaign finance laws restrict too much protected speech: democratic deliberation, widespread participation, individual autonomy, and electoral competition. Courts should make these values the explicit bases for reviewing campaign finance laws in the future.

I. Introduction

Two opposing approaches have emerged in judicial review of campaign finance reforms. The majority and dissenting opinions in the recent United States Supreme Court case of McConnell v. FEC1 illustrate the competing perspectives. Judges supportive of reform often tolerate regulations said to prevent corruption, even at the expense of infringing on some speech that poses little threat of corruption. Judges skeptical of reform err on the side of protecting speech, even if doing so may increase the risk of government corruption. Much more is at issue in this conflict than rhetoric about judicial restraint or judicial responsibility to protect speech. Campaign spending and regulations shape the outcomes of elections and legislative struggles over such critical issues as quality health care, clean air, and tax cuts. Ultimately, the stakes include the meaning of democracy itself.

The need to resolve this clash is now more urgent than ever. In the aftermath of the passage of the Bipartisan Campaign Reform Act of 2002 and the Court's decision in McConnell to uphold most of the Act's provisions,2 reformers have continued their crusade to close loopholes by working to broaden other federal and state regulations.3 This expansion will involve regulation of additional expressive activities. Civil liberties groups will respond immediately with litigation.

As yet, however, judges lack adequate guidance as to the point at which reforms go too far in infringing on speech. Narrow tailoring and substantial overbreadth tests forbid reforms that regulate an unacceptable amount of protected speech-speech that does not pose a threat of corruption or a similar danger. Yet even in the aftermath of the majority opinion in McConnell the tests do not specify precisely how much of such speech a campaign finance law must regulate before a judge should invalidate the law. Academic commentators have also largely ignored this question, choosing instead to focus on the general benefits of either greater or lesser regulation.4 This Article represents the first step toward developing a framework that will facilitate more principled judicial review of reforms.

Inadequate doctrinal guidance compels even the best judges to rely on their own assumptions about politics when reviewing reforms. The judges may cloak their decisions in First Amendment cliches like "the marketplace of ideas"5 or vague phrases like "preventing corruption and the appearance of corruption."6 They fail, however, to detail doctrinal specifics that limit these concepts. Instead, assumptions about the appropriate role of money in politics animate the decisions. Unfortunately, judges often leave these assumptions unstated because conventional First Amendment doctrine provides insufficient avenues for judges to discuss and analyze democratic values.

Because judges' individual assumptions about politics differ, courts often reach inconsistent decisions.7 These holdings sometimes neglect relevant issues such as fair deliberation about public affairs and widespread participation by citizens. Other holdings fail to respect the importance of individual autonomy or the need to ensure that incumbent officeholders do not design reforms to disadvantage challengers. Too many of the decisions go too far in infringing on either speech or legislative authority to regulate campaigns. The incoherent doctrine that emerges from these cases carries significant costs. Legislatures, unclear about the shape of constitutionally permissible regulation, often lack the will to enact what citizens perceive as much-needed reforms. As a result, legislation is likely to be either ineffective or deemed unconstitutional. The lack of constitutional direction also hampers compliance with, and enforcement of, such laws by those generally skeptical of campaign reform.

This Article uses the controversy in McConnell8 illustrates the challenge that courts face when attempting to distinguish between effective reforms that properly close loopholes and those that go too far. Under prior law, statutes prohibited corporations and unions from spending money on political advertisements containing express words of advocacy, such as "vote for" or "defeat" a particular candidate. Corporations and unions, however, circumvented these laws by spending money on advertisements that omitted words like "vote for" and "defeat," but attacked or praised a particular candidate. In response, Congress passed the electioneering provisions of the Bipartisan Campaign Reform Act of 2002 (the Act or BCRA).9 The Act restricted corporate and union spending on targeted advertisements that refer to a federal candidate and are broadcast in the few weeks prior to an election, regardless of whether such advertisements use express words of advocacy.10