Title: The Narrowing Government Interest in Campaign Finance Regulations: Republic Lost?
Abstract: I. Introduction 1II. Representative Democracy is a Compelling Interest 5A. The Framers Established a Representative Democracy 5B. Buckley v. Valeo: Representation is at the Base of Corruption 10C. The Supreme Court's Consideration of Representative Democracy 14III. The First Amendment Supports Representative Democracy 22A. A Right of Instruction 22B. A Marginal Impact on Speech 26IV. McCutcheon v. Representation Lost 34A. McCutcheon v. FEC 34B. Representatives Should Respond to Voters, not Donors 39C. Diluting the Votes of Constituents 42D. Enhancing the Power of the Donor Class 44V. Deference to the Legislature 50VI. Conclusion 58I. IntroductionA government interest in preserving a representative democracy should be asserted when campaign finance regulations are challenged. In a representative democracy, the promise of democratic self-government is fulfilled when the views of the people are transferred into the policy choices of their representatives. Representation is at the core of the United States Constitution and elections are the means by which the people choose their representa- tives. Since its decision in Buckley v. Valeo,1 the Supreme Court has held that any government interest in campaign finance regulation must be balanced against a donor's First Amendment right to engage in political speech by giving money to a candidate for public office. The First Amendment interest in political speech is one that the Roberts Court protects vigilantly by applying a heightened standard of review to any government regulation that burdens it.2 The First Amendment, however, has never acted as an absolute prohibition on the regulation of speech.In the Roberts Court's recent decisions holding campaign finance regulations unconstitutional, including Citizens United and McCutcheon v. FEC,3 Justices in the majority have taken a nearly absolutist view of the First Amendment protection of money as political speech. Moreover, they adopted an uncompromising position that preventing corruption or the appearance of corruption is the only compelling government interest that can support a campaign finance restriction. And they defined corruption narrowly. In McCutcheon, Chief Justice Roberts wrote that Congress can only target a specific type of corruption-quid pro corruption.4 By quid pro quo corruption, Chief Justice Roberts means the direct exchange of an official act for money or dollars for political favors.5The Roberts Court, however, fails to consider the fundamental, compelling government interest in preserving a representative democracy. In the summer of 1787, the delegates to the Philadelphia Constitutional Convention labored to establish the contours of a representative democracy embodied in the United States Constitution. Thereafter, the first United States Congress enacted the First Amendment to the Constitution, which included free speech clauses protecting the right of the people to express political views that would inform the policy choices of their representatives. A jurisprudence that uses the First Amendment to debase representative democracy turns the United States Constitution's first principles on their head. In balancing representative democracy against a First Amendment interest in the contribution of money to candidates for elected office, the Supreme Court should give a higher level of deference to the contemporary Congress's view regarding whether campaign finance regulations preserve representative democracy.When Benjamin Franklin walked out of Independence Hall, the work of the Constitutional Convention completed, he was stopped by a woman and asked, 'Mr. Franklin, what have you wrought?' 'A Republic, madam,' Franklin replied, lif you can keep it.' The Court's recent decisions striking down campaign finance regulations illustrate the challenges that Franklin knew the Republic would face. …
Publication Year: 2015
Publication Date: 2015-10-01
Language: en
Type: article
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Cited By Count: 1
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