Democracy, Deference, and Compromise: Understanding and Reforming Campaign Finance Jurisprudence

Authors

Scott P. Bloomberg, University of Maine School of Law

Abstract

In Citizens United, the Supreme Court interpreted the government’s interest in preventing corruption as being limited to preventing quid pro quo— cash-for-votes—corruption. This narrow interpretation drastically circumscribed legislatures’ abilities to regulate the financing of elections, in turn prompting scholars to propose a number of reforms for broadening the government interest in campaign finance cases. These reforms include urging the Court to recognize a new government interest such as political equality, to adopt a broader understanding of corruption, and to be more deferential to legislatures in defining corruption.

Building upon that body of scholarship, this Article begins with a descriptive account of campaign finance jurisprudence that identifies various conceptions of corruption found in the case law. The Article then explains how these conceptions of corruption are animated by underlying disagreements about democracy and deference. More particularly, one group of Justices believes that preserving a robust process of public opinion formation is paramount in campaign finance cases, and that individual rights and political process concerns warrant intervention in defining corruption. The other group of Justices believes that the deployment of concentrated wealth in elections impairs legislative responsiveness to public opinion and that the Court should defer to legislative expertise in defining corruption.

Having presented this account, the Article proposes a reform to accommodate both groups of Justices’ concerns in campaign finance cases. This reform, which I call the Compromise Methodology, instructs the Court to defer to the legislature’s understanding of the anticorruption interest when the

campaign finance law in question protects either: (a) legislative responsiveness to public opinion; or (b) the process of public opinion formation. If the law protects neither of these concerns, then the Court intervenes and finds that the anticorruption interest cannot justify the law. Aside from this reframing of the anticorruption interest, the Compromise Methodology leaves the Court’s ordinary decision-making process intact. The Court can still determine whether a campaign finance law impacts individual rights and whether a law is sufficiently tailored to the anticorruption interest to withstand scrutiny. I argue that the Compromise Methodology locates valuable middle ground in campaign finance jurisprudence.

Recommended Citation

Scott P. Bloomberg, Democracy, Deference, and Compromise: Understanding and Reforming Campaign Finance Jurisprudence, 53 Loy. L.A. L. Rev. 895 (2020).