Making Law with Lawsuits: Understanding Judicial Review in Campaign Finance Policy

By Curry, Rebecca | Suffolk University Law Review, Spring 2013 | Go to article overview

Making Law with Lawsuits: Understanding Judicial Review in Campaign Finance Policy


Curry, Rebecca, Suffolk University Law Review


I. INTRODUCTION II. NINETY YEARS OF LAW WITHOUT JUDICIAL POLICYMAKING   A. Parallel Legal Restrictions   B. Early Law Survives Constitutional Scrutiny   C. The Policymaking Structure of Early Law III. ENFORCEMENT TAKES AN UNEXPECTED TURN   A. Interest Group Enforcement   B. More Independent Government Enforcement   C. Policy Benefits Foreclosed     1. A Legal Exception for Independent Activists and Interest        Groups     2. The Fall of an Important Control on Campaign Costs   D. Implications for the 1974 FECA IV. THE JUDICIALIZATION OF CAMPAIGN FINANCE POLICY AFTER 1974   A. Reining in Legal Enforcement   B. Increasing Judicial Discretion   C. Opponents of Reform Appeal to Courts      1. Couching Political Opposition in Constitutional Rhetoric      2. Adding Vulnerable Provisions to the Law      3. Inviting Courts to Strike Disfavored Provisions      4. Limits to the "Blameshifting" Rationale    D. The Pro-Reform Factions in Congress      1. Conflicts of Interest Among FECA's Proponents      2. Logrolling to Overcome Political Conflicts     3. Statutory Vagueness and the Problem of Regulating       Campaign Assets     E. Designing a New Policymaking Structure for Campaign Finance       1. Choosing a Delegate       2. Harnessing Judicial Power V. THE CONGRESSIONAL RESPONSE TO BUCKLEY V. VALEO    A. Recreating the Responsive Agency      1. Further Limiting FEC Action and Restricting Reform         Group Activism      2. Institutionalizing Political Ambivalence    B. Maintaining Salient Restrictions Despite Buckley    C. Implications for Judicial Power VI. CONCLUSION 

I. INTRODUCTION

In much of the literature on campaign finance policy, judicial review is discussed as a choice judges make. As soon as Congress enacts a new statute limiting the use of money in elections, we are told, courts "jump in," often overturning important aspects of the legislature's regulatory scheme. (2) Because this scholarship focuses primarily on how judges' interpretations of First Amendment doctrine lead to these case outcomes, it tends to proffer a uniquely rights-oriented model of judicial power. (3) In this model, federal courts are independent actors, where judges may take up policy questions at will and where rights claims usually trump legislative preferences. While this concept was once no more than an unspoken premise in the literature, it now appears to be coming to the fore, as scholars frustrated with judicial decisions in this and other areas of election law demand that courts extricate themselves from "the political thicket." (4)

On the surface, there is much to recommend this view. In 1974, Congress passed a landmark reform that regulated most uses of private wealth in federal elections; and for the first time, it established an independent regulatory commission to oversee the new rules. (5) No sooner had the Federal Election Campaign Act (FECA) gone into effect, than the Supreme Court struck down its expenditure ceilings as violations of the First Amendment's free speech guarantee. (6) Ever since the 1976 Buckley decision, the Court's First Amendment jurisprudence has been central to any discussion of how to solve the problems associated with campaign finance. (7)

Still, that vision seems directly at odds with our general understanding of the constraints on judicial power in federal politics. After all, the history of constitutional adjudication is full of incidences where the other branches have undermined judicial rulings--either because unpopular decisions were overridden in the legislature, or because a lack of support from other policy leaders meant that such decisions effected no lasting policy change. (8) If "the least dangerous branch" could not win interbranch disputes over the income tax, the voting age, or the rights of slaves, (9) how did it come to have the last word on a matter as important to elected officials as campaign finance? (10)

In this Article, I take up that question. …

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