Equal Participation and Campaign Finance : Comparative Perspectives

The concept of “equal participation” provides a useful reframing for the judicial review of campaign finance regulation. This chapter draws on the jurisprudence of the Supreme Court of Canada on the “right to equal participation” in order to shed light on an alternate approach in the American context. The chapter begins by arguing for a general approach to campaign finance regulation under which the central challenge is to achieve a complex tradeoff between liberty and equality. It then turns to the jurisprudence of the U.S. Supreme Court, and it focuses, first, on the role that political equality plays in election law, and second, on the Court's recent recognition of a new right to participation. It also shows how this right to participation is not rooted in a commitment to political equality. The chapter then sets out the general framework adopted by the Supreme Court of Canada with respect to campaign finance, and it identifies the lessons that might be learned from the right to equal participation as enunciated in the Canadian law of democracy cases. The chapter concludes with a discussion of the trend towards unequal participation in the U.S. Supreme Court's election law jurisprudence