The Obliteration of Equality in American Campaign Finance Law: A Transborder Comparison

Daniel P. Tokaji, The Obliteration of Equality in American Campaign Finance Law: A Transborder Comparison, 5 J. Parliamentary & Pol. L. 381 (2011).

Abstract:  This article discusses the U.S. Supreme Court’s rejection of equality as a democratic value that may sometimes justify limits on campaign spending. Although the U.S. Supreme Court has long voiced skepticism of egalitarian rationales for campaign finance regulation, it has sometimes allowed equality to come in through the back door, disguised as an anticorruption rationale. Citizens United v. Federal Election Commission obliterates equality as a rationale for regulation in any form. Its prohibition on egalitarian justifications applies to both the inputs and the outputs of the democratic process. In other words, spending limits may not be used to equalize citizens’ ability to elect candidates to office (“electoral equality”) or to equalize citizens’ influence on decisions made by those in office (“policymaking equality”). The consequence of equality’s banishment is an impoverished political dialogue about campaign finance regulation in the United States. Those in the public sphere are unable to talk honestly about the most important value that regulation might serve.

The article traces the roots of equality’s banishment from campaign finance discourse, explains how Citizens United makes things worse, and suggests a path toward a more constructive U.S. jurisprudence. In so doing, it uses Canadian campaign finance law as a counterpoint, one that highlights flaws in the American approach. The two countries stand at opposite ends of the spectrum when it comes to equality. Canada’s Parliament and Supreme Court have embraced an egalitarian vision of democracy with the same gusto that the U.S. Supreme Court has disowned it. This difference has major consequences on the public discourse surrounding campaign finance regulation and the very structure of democracy.

The article starts with a discussion of Buckley v. Valeo and its progeny, including cases that subtly depart from that decision’s anti-egalitarian refrain. It distills from this line of precedent four democratic values: (1) liberty, (2) equality, (3) anti-corruption, and (4) competitiveness. Historically, the battles over campaign finance in the U.S. have mostly focused on the values of liberty and anti-corruption. But the really important question is how to promote equality without diminishing fair competition. After assessing the Court’s renewed anti-egalitarian turn in Citizens United, the article contrasts Canadian constitutional law, showing how it does a better job of affirming the sometimes competing values at stake in the regulation of campaign finance. It closes by assessing the prospects for a rebirth of equality as a rationale for regulation, should the composition of the U.S Supreme Court change.

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