Elections across the Pond: Comparing Campaign Finance Regimes in the United States and United Kingdom
Hunker, Kathleen, Harvard Journal of Law & Public Policy
1. CAMPAIGN FINANCE IN THE UNITED STATES A. The Permitted Framework B. Congress's Attempt to Foster Political Parity 1. Congress's First Attempt 2. Congress's Second Attempt C. The Enumerated Right to Free Speech D. The Court Responds II. CAMPAIGN FINANCE IN THE UNITED KINGDOM A. An Allergy to "Sleaze" B. The Residual Right to Free Speech C. Parliamentary Sovereignty D. Challenges to Parliamentary Sovereignty 1. Implications of the European Convention on Human Rights 2. Implications of the Human Rights Act CONCLUSION
Campaign finance reform sits at the junction of two central tenets of modern liberal democracy: political liberty and political equality. On the one hand, political liberty proves indispensable to the discovery (1) and dissemination (2) of political truths--a requisite for genuine consent and participation by the citizenry. (3) On the other hand, political equality remains the standard by which the integrity of a democratic system is measured. (4) At first glance, these tenets do not necessarily collide in opposition: Both principles speak to individual autonomy, and both convey respect for human dignity. In a free-market economy, however, the asymmetrical distribution of wealth can result in unequal opportunities to influence the political process if liberty remains unrestrained. (5) This is particularly true with respect to political liberties that require an investment of capital before they can be exercised with any great effect. (6)
The right to political speech is a prime example. Although the ability to voice one's ideas is not dependent on wealth, the ability to reach a wide audience is. What is the point of designing a political cartoon unless you can purchase the paper on which to print it? Speech without resources is sterile. It is deprived of the very thing that gives speech its inherent value as an instrument of individual self-development and democratic participation. (7) Of course, this coupling of speech and capital alludes to the very snarl mentioned above. When wealth is unevenly distributed, as it inevitably is, some individuals will be in a better position than others to exercise their right to effective political speech. These individuals will be in a better position to set the contours of public debate and secure their success at the polls. (8) For any democracy that identifies political equality as something beyond a formal definition of one-man-one-vote, this lopsided arrangement has severe implications since access to political liberty appears to favor affluence but the democracy's legitimacy depends on uniform access to methods of influencing the government. (9) Thus, democratic governments often find themselves traversing a tightrope in the areas of political speech, gauging each step in an attempt to find the optimal balance of free speech and fair play.
A government's campaign finance laws represent the legislature's judgment regarding the proper balance between political liberty and political equality. Campaign finance laws represent an assessment of how a society's constitutional principles, organizational choices and political realities shape its democratic priorities. More importantly, these laws work to palliate the government's perceived loss of legitimacy by enabling the citizenry, through their elected representatives, to make a purposeful choice of which principle to indemnify. Any resulting political inequality or inhibitions on liberty are rationalized as a product of the society's democratic values, not a slight against them.
Legislatures, however, do not possess unlimited discretion in their choices. In addition to political checks, many democracies structure their constitutions in ways that inhibit majoritarian control over political speech lest that control give way to hegemony by the majority and exclude minorities from access to political power. …