Survival of Campaign Finance Reform

Izzah Zaheer

ABSTRACT

In this research paper, I analyze various viewpoints concerning Buckley v. Valeo’s survival past the current Court. I analyze the paths of campaign finance reform jurisprudence that stem from Buckley and how the Roberts Court interprets campaign finance reform. This analysis is important in determining whether the Roberts Court is simply placing limits on campaign finance reform or whether their interpretation has virtually eliminated any future for campaign finance regulation. Kang, Gaughan and Strause and Tokaji highlight that the changes on the Court concerning the coalitions have created an extremely narrow doctrine, which marks the virtual end of campaign finance reform. However, Gaughan also contends that the Court is attempting to create a cohesive campaign finance jurisprudence and therefore disregards precedents often seen as unorganized or contradictory. Weaver, Smith and Youn contend that the Roberts Court is not trying to stifle campaign finance reform, but rather expanding what is considered protected speech, thus limiting the scope of campaign finance regulation. Considering these viewpoints, I conclude that because of the Roberts Court’s interpretation of campaign finance regulation, Buckley and campaign finance as a whole is unlikely to survive the current Court. Because of shifts in coalition and doctrine, the scope that campaign finance reform can operate has become extremely limited, leaving virtually no room for activists to push for further reform.

INTRODUCTION

When looking at campaign finance reform, various interpretations of the FirstAmendment by different Courts created scattered jurisprudence on this issue. The first significant case for campaign finance reform, Buckley v. Valeo, consisted of confusing reasoning that led to the later jurisprudence splitting into several strands. By examining this jurisprudence through the lens of various coalitions on the Court, there are various strands of logic that emerge in regard to this issue. Therefore, understanding the survival of Buckley through the current Court is crucial in order to determine whether there is a future to campaign finance reform or if free speech protections will eventually include any campaign finance regulation. Furthermore, there are varying opinions on this issue with those who believe that limiting campaign contributions is the equivalent to limiting speech, while others believe that equating money to speech is detrimental to the democratic system. These opinions are evident through the coalitions on the earlier Roberts Court considering the divided opinion in Citizens United with Justices such as Kennedy, Scalia, Thomas,Alito and Roberts ruling to limit regulation on campaign finance reform, while Justices such as Sotomayor, Ginsburg, Breyer, and Stevens prefer to uphold campaign finance reform. Evaluating the changes or lack thereof in these coalitions, while also considering the changes to the Court, provides clarity about the impact on campaign finance reform in the future. When arriving at the Roberts Court, Citizens United illustrates a change of a large part of campaign finance reform jurisprudence. The Roberts Court continues to change this jurisprudence with McCutcheon v. FEC, leaving Buckley to hang by a thread. Through evaluating the Supreme Court’s past campaign finance reform, the coalitions, and changes on the Court, to a greater extent, it is unlikely that Buckley will survive through this current Court.

CASE LAW

Buckley v. Valeo and Extensions Buckley v. Valeo was the first campaign finance reform case the Supreme Court reviewed. Therefore, its ruling set the baseline from which the Court evaluates issues concerning campaign finance law. In Buckley, the Court ruled on the constitutionality of the Federal Election Campaign Act of 1974 concerning contribution limits, expenditure limits, and disclosure requirements. Through the Court’s discussion regarding the constitutionality of these issues, “the Court persisted in treating the regulation of campaign monies as tantamount to regulation of political expression.”1 Essentially, the Court equated money with speech and looked at this case through the lens of the First Amendment because this money facilitates “the effective exercise of the right to participate in political debate.”2 Nevertheless, the ruling that came from Buckley presented a splintered Court.

Through Buckley, the Court upheld the contribution limits in the FECA since the primary governmental interest of preventing corruption is compelling enough to restrict political speech. In subsequent cases, such as California Medical Association v. FEC and Nixon v. Shrink Missouri, the Court upheld the contribution limits established in Buckley. However, in Nixon, Scalia, Thomas, and Kennedy all dissent claiming that a limit on contributions is a restriction on fundamental rights and democracy, similar to Burger’s dissent in Buckley. With a significant number of justices that are later on the Roberts Court disagreeing with a crucial element of the Buckley decision, there is more doubt in Buckley surviving the current Court (Briffault, 2011, 898).

Although the Court upheld contribution limits in Buckley, it applies a higher level of scrutiny to expenditure limits, thus protecting corporate speech. Although the Court protected corporate speech in First National Bank v. Belotti, there are inconsistencies in later cases, specifically with the definition of “corruption.” Because “corruption” is not clearly defined in Buckley, justices can choose a narrow or broad definition. In FEC v. Massachusetts Citizens for Life, the Court struck down expenditure limits, while in Austin v. Michigan Chamber of Commerce, the majority upheld expenditure limits to prevent “undue influence” over the political process.3 The dissonance between these two cases illustrates the splintered foundation for campaign finance reform jurisprudence. The Court also upheld disclosure requirements under strict scrutiny, but in Brown v. Socialist Workers, the Court affirmed Buckley’s exception for organizations that could have an increased amount of threats or harassment due to disclosure laws.4

A Turning Point: McConnell v. FEC Buckley v. Valeo laid an unstable foundation for campaign finance reform jurisprudence. McConnell v. FEC sought to reinforce and clarify aspects of Buckley, which seemed vague. The Court upheld large components of the Bipartisan Campaign Reform Act, including prohibitions on parties using soft money and electioneering, both which were met with strong dissents from Justice Kennedy, Thomas, and Scalia. The McConnell Court based their definition of corruption on legitimate and illegitimate influences on an officeholder’s judgement besides quid pro quo corruption. The Court considered whether an officeholder would be beholden to the “wishes of those who have made large financial contributions.”5 This analysis is an extension to the rulings in Buckley in regard to contribution limits and corruption. The Court in terms of electioneering tries to distinguish between “public and electoral

1 Frederick Slabach, The Constitution and Campaign Finance Reform, (Durham, CarolinaAcademic Press, 1985), 57. 2 Ibid.,59. 3 Lori Ringhand, Defining Democracy: The Supreme Court’s Campaign Finance Dilemma, (San Francisco: Hastings Law Journal, 2004), 101. 4 L. Paige Whittaker, Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny, (American Law Division, 2008), 25. 5 Nathaniel Persily and Kelli Lammie, The Law of Democracy: Campaign Finance After McCain-Feingold: Perceptions of Corruption And Campaign Finance: When Public Opinion Determines Constitutional Law, (Pennsylvania Law Review, 2004), 126-127.

speech.”6 McConnell overturns lower court rulings, which only interpreted advocacy for candidates in express terms; the Court holds that neither the First Amendment nor Buckley prohibits regulation of electioneering communications that may or may not contain advocacy terms.7

The Roberts Court: Citizens United McConnell tried to provide a stable ground for campaign finance reform jurisprudence, but many on the Court were still divided over this contentious issue. However, with changes on the Court, there is a substantial shift on campaign finance reform. In Wisconsin Right to Life, Inc. v. FEC, the Roberts Court finds that prohibiting treasury funds being spent in a primary or general election is unconstitutional, but the Court distinguishes from McConnell. Additionally, in Davis v. FEC, the Court struck down contribution limits as a violation of the First Amendment. Both these cases are essentially warning shots in regard to what the Roberts Court intends to do with campaign finance reform jurisprudence. In Citizens United, the Court overturns significant portions of McConnell, which specifically includes the prohibition of independent expenditures for corporations, placing corporate speech under FirstAmendment protection. The Roberts Court in Citizens United overhauls campaign finance reform, significantly altering how this area of law will be viewed in the future.

The Roberts Court continues to limit campaign finance reform by expanding the definition of speech in terms of money and campaigns. In subsequent cases, such asArizona Free Enterprise andAmerican Tradition Partnership, the effects of Citizens United on campaign finance reform is evident as the Court strikes down contribution parity limits and corporate expenditure limits. Recently, in McCutcheon v. FEC, the Roberts Court struck down a federal contribution limit for the first time, allowing individuals to make unlimited donations in elections. Furthermore, the Court indicating that it will not shy away from striking down federal statutes illustrates their willingness to further undo federal regulation on campaign finance reform.

Literature Review: Roberts Court and Campaign Finance Reform The Roberts Court drastically changed the landscape of campaign finance reform from its genesis in Buckley. The Roberts Court’s rulings in Citizens United and McCutcheon v. FEC have significantly altered the jurisprudence of campaign finance reform since Buckley. However, there are varying opinions concerning the extent of change to campaign finance reform jurisprudence. Furthermore, there is debate on whether the Roberts Court’s rulings are an advancement of First Amendment rights or detrimental to the democratic process. Campaign Finance Reform Is Over

Narrow Doctrine The Roberts Court has operated on a limited definition of corruption with a broader interpretation of the First Amendment in terms of money and corporate speech. Part of the Roberts Court’s willingness to largely overturn campaign finance reform originates from the “law’s failure to track contemporary campaign finance,” which “is the ironic result” of earlier Court’s “sympathy for the government’s in regulating campaign finance.”8 Michael S. Kang and Renata E.B. Strause and Daniel Tokaji discuss how the Rehnquist Court’s broad interpretation of corruption in terms of campaign finance without looking at a quid pro quo corruption specifically allowed the Roberts Court to reject any expansions to corruption and rely on an underdeveloped notion of a quid pro quo corruption. Therefore, the Roberts Court is on track to consider corruption only in terms of the quid pro quo

6 Monica Youn, Money, Politics, and the Constitution: Beyond Citizens United, (New York: Century Foundation Press, 2011), 46. 7 L. Paige Whitaker, Constitutionality of Campaign Finance Reform, 32. 8 Michael S. Kang, The Brave New World of Party Campaign Finance Law, (Cornell Law Review, 2016), 534.

narrative, which “does not track contemporary concerns about modern campaign finance.”9 Considering this, Kang argues that the Roberts Court is on a path to completely change the jurisprudence in terms of campaign finance law, which will remain hostile towards any regulation on corporate speech. He determines that the only path forward for campaign finance reform is if a “future Court less hostile” is “willing to build on intellectual groundwork set forth now only in dissent.” Kang paints the picture of the Roberts Court as one completely averse to any type of campaign finance reform due to their narrow interpretation of corruption and essentially “any policy question about campaign finance law ... has been thoroughly deregulated.”10 This difference in interpretations concerning campaign finance reform is due to the “Rehnquist Court’s approach in splintering off into alternative theories of corruption,” thus making it easier for the Roberts Court to disregard past precedent and focus on a quid pro quo corruption.11 Furthermore, Strause and Tokaji agree with Kang’s argument as the Roberts Court has severely constricted the anti-corruption rationale.12 Similar to Kang’s argument, Strause and Tokaji contend that “the anti-corruption rationale will remain narrow,” while the concept of equality in terms of campaign finance is pushed out of view.13 Because of this, advocates for reform will have limited options regarding changing the structure of campaign finance laws.

Changes on the Court Until the Roberts Court, “judicial deference to the government in campaign finance law” has been a constant.14 However, Kang anticipates that the Roberts Court will dismantle Buckley since now it is under more pressure specifically with identifying “anti-corruption” as a legitimate governmental interest. Kang attributes this shift specifically to the changes on the Court with Chief Justice John Roberts and Justice SamuelAlito replacing Chief Justice William Rehnquist and Justice Sandra Day O’Connor respectively, thus leading to “the Court abruptly switch[ing] course on campaign finance law.”15 This change was significant since from this point the Court switched from judicial deference to governmental interest to judicial activism in striking down campaign finance laws. Additionally, Strause and Tokaji highlight how “five justices adhere to a narrow conception of corruption” seen in both Citizens United and McCutcheon.16 Because of this, Strause and Tokaji concur with Kang regarding the current Court: there will be no drastic change concerning campaign finance reform since the majority maintains a narrow conception of corruption. The same justices who are in the majority in Citizens United are in the majority later in McCutcheon when the Court ruled against campaign finance regulation. Therefore, this represents another time in recent years in which “all the Republican-nominated justices” and “all the Democratic-nominated justices” voted along distinct blocs to strike down or uphold campaign finance regulation respectively.17 Considering these specific blocs, Gaughan’s perspective aligns with both Strause and Tokaji and Kang since all magnify the composition of the Court as a major reason for the drastic changes the Roberts Court has made to campaign finance jurisprudence.

Limitations on Reform Although many view the Roberts Court as completely averse to campaign finance, others view the limitations the Roberts Court has placed on campaign finance reform as part of their interpretation of the First Amendment.

9 Ibid, 534. 10 Ibid, 535. 11 Ibid, 548. 12 Renata E. B. Strause & Daniel P. Tokaji, BetweenAccess and Influence: Building a Record for the Next Court, (Duke Journal of Constitutional Law & Public Policy, 2014), 188. 13 Ibid, 185. 14 Kang, The Brave New World, 538. 15 Ibid, 546. 16 Strause & Tokaji, BetweenAccess and Influence, 180. 17 Anthony J. Gaughan, In Defense of McCutcheon v. Federal Election Commission, (The Kansas Journal of Law & Public Policy), 235.

Campaign Finance and Protected Speech Buckley v. Valeo represents the genesis of campaign finance reform jurisprudence and the Court at the time found that the FECA’s contribution and expenditure limitations “operate in an area of the most fundamental First Amendment Activities,” which offers “the broadest protection to such political expression.”18 Slabach discusses how the Buckley Court treated “the regulation of campaign monies as tantamount to regulation of political expression” stating “in effect, that money is speech.”19 Therefore, this analysis places campaign funding at the same level as protected speech. Because Buckley essentially determined that “money is speech,” this interpretation influenced later analysis concerning campaign finance reform.

The Roberts Court largely functions on the same principle by warranting campaign finance the same protection as protected speech. Weaver contends that it would be “unfair to characterize the Roberts Court’s” decisions as “probusiness.”20 In fact, justices who joined the majority in the Roberts Court’s campaign finance decisions were more consistently concerned about “free speech principles” as a whole. Because past decisions such asAustin and McConnell have indecisive opinions in which a substantial number of justices find campaign finance regulations to be in violation of freedom of expression. Therefore, because of “indecisive precedent,” the decision in Citizens United and McCutcheon is just an example of the Roberts Court applying its interpretation of the freedom of expression clause based on the dissents in past cases.21

Furthermore, McCutcheon v. FEC itself “was of relatively little practical importance” since there was already a limit on expenditures.22 In McCutcheon, the Roberts Court applied the same logic that it has applied in past campaign finance cases. The Court held that contribution or expenditure restrictions “to equalize voices” do not serve a “compelling government interest to justify the restraints on First Amendment rights.”23 Therefore, the argument the Roberts Court applies in McCutcheon is a similar argument seen in Citizens United and has the same undertones as seen in Buckley.24 Therefore, Smith contends that the only reason McCutcheon appeared to be a “blockbuster” decision is because of the dissent, which argues that the “aggregate caps” struck down in the case help the compelling governmental interest of curbing corruption. However, those who join the decision argue that aggregate caps are not “narrowly tailored.”25 Essentially, the Roberts Court strikes down these limits not as a part of a “probusiness” agenda, but rather as an effort to maintain the protections of free speech and expression. Considering this, the Roberts Court limits on campaign finance reform are not tailored to making campaign finance reform impossible, but rather employing a wide definition of protected speech.

Creating a Cohesive Doctrine The jurisprudence surrounding campaign finance reform had already taken several sharp turns in terms of doctrine through the years. Buckley v. Valeo itself was a confusing decision with seemingly contradictory interpretations. Therefore, the Roberts Court’s interpretation that placed limits on campaign finance reform was the Court’s way of creating a more cohesive doctrine. In fact, Citizens United was not a shocking decision, rather “the product of a decades-long legal drive to rethink doctrine and, ultimately, strike down the edifice of campaign finance law.”26 According to Monica Youn, the Roberts Court is only shaping campaign finance laws to where they are “stable and

18 Buckley v. Valeo, 424 US 1 (1976). 19 Slabach, The Constitution, 57 20 Russell Weaver, The Roberts Court and Campaign Finance: “Umpire” or “Pro-BusinessActivism?”(StetsonLaw Review, 2011), 858. 21 Ibid, 859. 22 BradleyA. Smith, McCutcheon v. Federal Election Commission:An Unlikely Blockbuster, (New York University Journal of Law & Liberty, 2015), 57. 23 Ibid, 50. 24 Ibid, 52. 25 Smith, McCutcheon, 58. 26 Youn, Money, Politics and the Constitution, 15.

coherent” and reflect “the text and values of the Constitution.”27 Past Courts have failed “to develop a consistent and workable body of doctrine” and the Roberts Court in Citizens United attempts to define “the scope of campaignrelated speech” and “corruption.”28 Although Citizens United seemed like the Court was turning its back on past precedent, in reality the Roberts Court was trying to create a feasible doctrine to rule on for campaign finance.

In McCutcheon v. FEC, the Court applied strict scrutiny review to the aggregate limits, thus finding that they were “invalid under the First Amendment.”29 Furthermore, Gaughan highlights how McCutcheon provides a solid and objective definition of corruption since the Court rejects “the notion that the Constitution permits the government to criminalize” contributors’access and influence with members of Congress.30 The definition of corruption varies through the Court’s jurisprudence as Buckley and McConnell both adopt a wider view of corruption. However, the Roberts Court, wanting to provide a more cohesive doctrine on campaign finance laws, limits corruption to only refer to quid pro quo transactions.

Although the dissenters emphasized that a narrow definition of corruption provides too many loopholes, Chief Justice Roberts holds that their definition is based on the one provided in Buckley. This reasoning by Roberts supports both Youn and Gaughan’s arguments: the Roberts Court seeks to create a cohesive doctrine concerning campaign finance reform that avoids the confusion and variance of past precedent.

The Roberts Courts’rulings on campaign finance reform leave Buckley hanging by a thread and thus indicate that the Roberts Court is willing to narrow the scope of campaign finance reform into oblivion. Therefore, to a greater extent, campaign finance reform will be difficult to establish in the future due to the makeup and the interpretation of the Court.

ANALYSIS

Originally in Dissent Buckley is the first case on campaign finance laws and the disagreement between the majority and dissent is based on which level of scrutiny to apply to contribution and expenditure limits. Justice Burger, in dissent, argues that both limits implicate First Amendment rights and thus should be evaluated under strict scrutiny.31 The same sentiment in Burger’s dissent is later reflected in Nixon v. Shrink Missouri’s dissent where Justice Scalia, Thomas, and Kennedy all admonish the decision in Buckley and argue that contribution limits should be evaluated under strict scrutiny because they concern limits on speech.32 The same three justices dissent in McConnell v. FEC, which upholds significant portions of the BCRAand broadens the definition of corruption to anything giving the “appearance of undue influence.”33 Kennedy specifically emphasizes that corruption should be limited to quid pro quo transactions. Despite these cases taking place before the Roberts Court, Scalia, Thomas, and Kennedy are all members of the Roberts Court later, and their views on campaign finance reform begin in dissent, but later become important parts of the majority following shifts on the Supreme Court. At the time, Scalia, Thomas, and Kennedy are all in dissent, but the sentiment they highlight is later echoed in the majority opinion of both Citizens United and McCutcheon. Kennedy’s dissent in McConell is significant since he is considered a swing vote on the Court, but in terms of campaign finance reform, he shows his consistent advocacy for free speech rights as opposed to the state’s interest. However, his advocacy remains in dissent.

27 Ibid, 35. 28 Ibid, 38. 29 Gaughan, In Defense, 242. 30 Ibid, 236. 31 Slabach, The Constitution, 87. 32 Richard Briffault, On DejudicializingAmerican Campaign Finance Law, (Georgia State University Law Review, 2011), 898. 33 Robert C. Post, Campaign Finance Reform and the Constitution, (Massachusetts, Harvard University Press, 2014), 58.

Shifts in Coalitions John Roberts’ appointment to the Supreme Court as Chief Justice and Samuel Alito’s appointment to the Supreme Court both represent turning points concerning campaign finance reform jurisprudence.After both their appointments, the dissenting argument transformed into the majority opinion. Scalia, Thomas, and Kennedy, all originally found in dissent in campaign finance cases were now key players in the majority. For example, in Wisconsin Right to Life, Inc. v. FEC, the Supreme Court did not expressly overturn McConnell, but the Court struck down a provision of the BCRA that prohibited treasury funds from being spent on broadcasts before an election. This case illustrates how changes on the Court illustrate a shift in coalition, which moves the Court towards upholding a free speech interest rather than a state interest (Youn, 2011, 52).34 Furthermore, Davis v. FEC illustrates an instance in which the Court strikes down contribution limits as a violation of the First amendment. Both Davis and Wisconsin Right to Life, Inc. serve as the Roberts Court’s warning shots regarding what the Court intends to do to campaign finance reform. Considering the coalitions on the Court, the Roberts Court’s ruling in Citizens United is less shocking as the Court was simply applying their interpretation of campaign finance law. The Roberts Court did turn its back on years of campaign finance reform precedents, but the sentiment highlighted through the majority in Citizens United was a vital part of the dissents in those precedents. Nevertheless, Citizens United manages to stay attached to Buckley and essentially clarifies the corruption principle first introduced at that point. However, the Buckley compromise has proven to be unstable, and Citizens United is further indication that the Roberts Court intends to shift from the genesis of campaign finance reform jurisprudence and begin on a track of its own that once used to be only found in dissent. Therefore, the changes on the Court are what led to a turn in campaign finance jurisprudence and what will inevitably prevent future campaign finance reform.

Citizens United was the Court’s signal concerning the path the Roberts Court will follow in terms of campaign finance reform and McCutcheon v. FEC was a confirmation about the Court’s direction on campaign finance reform. The Roberts Court coalition, which ruled against campaign finance reform under the free speech right, remained consistent as they emphasized that corruption only concerns quid pro quo transactions and thus strikes down federal contribution limits. The dissent in McCutcheon relies upon the same principles once in the majority in past cases, but because of the shifts on the Court, a wider definition of corruption as well as equalizing influence are dissenting arguments. Therefore, McCutcheon represents the Court pointing in a different direction than from past campaign finance precedent. This direction is the Court’s intent to narrow the space in which campaign finance reform can operate. However, the Roberts Court sets a base in which campaign finance reform has little room to grow since any limitations on contributions would be struck down under this Court’s interpretation of the FirstAmendment, essentially, extinguishing any hope for future campaign finance reform laws.

Despite the Roberts Court’s hardline approach against campaign finance reform, in Williams-Yulee v. Florida Bar, Chief Justice John Roberts joins the usual dissenters who become the majority in this case, which upholds a contribution solicitation limit in judicial elections. Although Roberts leaves his usual coalition to uphold this campaign finance regulation, this does not necessarily indicate that the Roberts Court will become less aggressive towards campaign finance regulation. Williams-Yulee concerns judicial elections specifically; therefore, this case simply highlights that Roberts believes campaign finance regulation should apply to judicial elections as judges are elected to be impartial interpreters rather than politicians.

34 Youn, Money, Politics, and the Constitution, 52.

The Roberts Court’s Interpretation The Roberts Court’s broad interpretation of the First Amendment’s free speech right and the narrow interpretation of corruption contributes to their rulings that inevitably prevent the expansion of campaign finance reform.

Initially, Buckley adopts a lower standard of review for contribution limits and establishes a quid pro quo definition and appearance of corruption. However, Buckley applied strict scrutiny to expenditure limits, thus creating dissonance within the decision. In subsequent cases, such asAustin and McConnell, the Supreme Court begins to expand on the definition of corruption as anything, which gives the appearance of “undue influence.” Therefore, precedent on campaign finance reform favored a wider definition of corruption that restricted free speech due to the state interest of preventing corruption.

However, the Roberts Court adopted a narrow definition of corruption, limiting it specifically to quid pro quo deals, thus favoring a wider free speech right and ruling against the government’s ability to regulate campaign finance. Therefore, the Roberts Court’s interpretation on campaign finance laws limits the scope of which campaign finance reform can operate. In both Citizens United and McCutcheon the Court employs their interpretation by creating a new path for campaign finance jurisprudence since it disregards past precedent and relies on the Court’s own narrow interpretation of corruption. This narrow interpretation through Citizens United and McCutcheon significantly limits the government’s ability to regulate campaign finance to the point that any new campaign finance reform laws have become virtually impossible.

Buckley v. Valeo’s Survival Through the Current Court McCutcheon in 2014 illustrated that the Roberts Court was set on an interpretation of campaign finance that favored the individual free speech interest over the state interest in preventing corruption. However, since 2014, there have been changes on the Court with the appointment of Neil Gorsuch and Bret Kavanaugh replacing Justice Scalia and Justice Kennedy, respectively. Strause and Tokaji both discuss how campaign finance laws have become extremely limited, but a future Court could potentially reverse this course.

Gorsuch and Kavanaugh both apply an originalist interpretation to the Constitution similar to that of Justice Scalia; Scalia was consistently in support of striking down campaign finance regulation as a violation of the First Amendment. Furthermore, campaign finance decisions generally split along ideological lines with the exception of Williams-Yulee. Justices appointed by Republican presidents support striking down campaign finance regulation, while justices appointed by Democratic presidents support the state interest of preventing corruption. Therefore, both Kavanaugh and Gorsuch were appointed by a Republican president and thus will most likely rule in favor of striking down campaign finance form.

The Current Court’s trajectory in terms of campaign finance reform can be seen in Thompson v. Hebdon, which concerns a $500 dollar contribution limit to PACs in Alaska. In the per curiam opinion granting certiorari, the Court highlights Citizens United and McCutcheon as precedents. The Court also cites Randall v. Sorell, a decision in 2006 by the Roberts Court, which struck down similar contribution limits in Vermont. Thompson v. Hebdon is not an extremely consequential case, but the per curiam opinion illustrates that the Court has made up its mind on the issue of campaign finance reform and that the current Court will follow in the direction set forth by Citizens United.

CONCLUSION

Buckley represents the genesis of campaign finance jurisprudence, which has split into various strands over the years due to different interpretations on the Court. The Roberts Court has consistently ruled on striking down campaign finance regulation, citing the FirstAmendment, leaving Buckley to hang by a thread. Therefore, the limitations that the Roberts Court has placed on campaign finance reform has narrowed the room for any regulation to oblivion. Additionally, the current Court with the replacements of Gorsuch and Kavanaugh is likely to follow the path the Roberts Court has already paved.

The Roberts Court relies on free speech principles when ruling against campaign finance reform laws. The argument centers around the concept that “money is speech” and limiting the ability to influence policymakers with donations is inherently restricting speech. However, by lifting almost all barriers between monetary influence and lawmakers, the Court permits more influence to wealthier donors. The dissent in recent campaign finance cases admonishes this unequal influence and argues that campaign finance reform equalizes influence through the electorate.

The argument between the majority and the dissent illustrates the paradox of campaign finance reform. Both the dissent and majority argue that their interpretation protects democracy and the democratic process. The current majority would argue that striking down campaign finance regulation is necessary to maintain free speech, a crucial part of democracy. However, the dissenters would argue that striking down campaign finance regulation hurts democracy by giving more political influence to the wealthy.

These two viewpoints are completely diametrically opposed. The current Court is setting a precedent mainly focused on the free speech interest rather than corruption. Given that the Court generally splits along ideological lines, it is highly unlikely that a Court in the near future is going to dramatically alter this jurisprudence. Therefore, the space for activists to institute campaign finance reform is considerably limited. Whether that is beneficial for the future of the democratic process is something only time and observation will tell.

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