Democracy, power, and the Supreme Court: Campaign finance reform in comparative context

Abstract

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.