Jurisprudence & Litigation

In this essay, Smith tries to analyze the doctrinal strengths and weaknesses of the McConnell decision. Instead of discussing the full contours of the opinion, he makes two points about the majority opinion which run counter to how it has been widely characterized. He hopes that calling attention to these points now will assist others in more detailed analysis. He also makes a few general predictions about the practical effects of the decision, which may also be useful as we look to see how the law works in practice.

This article addresses the McConnell v. FEC Supreme Court case, along with American attitudes toward government in relation to corruption and campaign finance. The authors argue that trends in public perception of corruption may have little to do with the campaign finance system. They argue that a person’s view of corruption comes from that person’s position in society, opinion of the incumbent administration and performance of the economy over the previous year, attitudes concerning taxation and “big government,” and finally, propensity to trust other people in general. The authors conclude that a large majority of Americans believe that the campaign finance system contributes to corruption in government; the data does not suggest that campaign finance reform will have an effect on those attitudes.

In the wake of recent reports of questionable campaign finance practices have come ever more draconian proposals to “reform” the campaign finance system. Those proposals pose a disturbing threat to the individual political freedom guaranteed by the Constitution. Under current precedents, none of them could survive a First Amendment challenge.

This study challenges the orthodoxy that political money must be limited.  The author first outlines the current law of political money and proposals for reform, and then critically examines reformers’ arguments by examining the political and constitutional theories that refute them.  She concludes by noting that the best way to resolve the anomalies in the current campaign finance landscape may be to eliminate contribution limits entirely.