Democracy, Power, and the Supreme Court : Campaign Finance Reform in Comparative Context

The debate over campaign finance regulation 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. Campaign finance restrictions prevent inequalities in wealth from being translated into inequalities in political power; at the same time, campaign finance regulations protect incumbents, and may also shift power to a smaller set of elites within society. I claim, therefore, that the question of what to do about campaign finance regulation leads to a troubling paradox: the absence of campaign finance regulations may result in the entrenchment of the wealthy, while the imposition of campaign finance regulations may result in the entrenchment of the powerful.Based on these observations, this article develops a proposal for the adjudication of campaign finance cases. Instead of treating the campaign finance debate as a choice between reducing corruption or protecting speech, I claim instead that the decision to regulate campaign finance should be viewed as inevitably involving a trade-off among competing distributions of power in a democracy. This Article outlines a proposal for how courts should analyze the power trade-offs involved in the regulation of campaign finance