Democracy, power, and the Supreme Court: Campaign finance reform in comparative context
* Ph.D. candidate, Department of political science, University of Chicago. I am deeply grateful to Danielle Allen, Stanley Katz, Jacob Levy, Patchen Markell, Jennifer Rubenstein, and anonymous reviewers for invaluable comments on an earlier version of this article. Special thanks are also owed to Ran Hirschl and Christopher Eisgruber for excellent editorial suggestions, and for organizing the North American Constitutionalism conference, at which this paper was presented. In addition, I am indebted to many people for very helpful questions and suggestions, including Karen Barrett, Sujit Choudhry, Norman Dorsen, Leslie Goldstein, Mark Graber, Mark Hansen, Vicki Jackson, Kent Roach, Kim Lane Scheppele, Richard Simeon, Mark Tushnet, and Melissa Williams. I am especially grateful to Cass Sunstein and Lisa Wedeen for extremely helpful and incisive comments on a larger project, of which this article forms a part. Email: ydawood{at}uchicago.edu
The debate over campaign finance reform is usually framed as a conflict between reducing corruption in the electoral process, on the one hand, and protecting freedom of speech, on the other. There is far more at stake, however, in the controversy over campaign finance regulation. By engaging in a comparative analysis of key decisions by the U.S. Supreme Court and the Supreme Court of Canada, this article shows that the judicial oversight of campaign finance reform raises fundamental and complex questions about democratic values, processes, and institutions. Specifically, I argue that conflicts over campaign finance regulation are at base disputes about how power should be distributed within a democracy. In addition, I claim that the decision to regulate campaign finance should be viewed as inevitably involving a trade-off among competing distributions of power in a democracy. In other words, campaign finance regulation does not simply present a choice between reducing corruption and protecting speech; instead, the actual decision involves a far more complex balancing of competing objectives. This article outlines a proposal for how courts should analyze the power trade-offs involved in the regulation of campaign finance.