Strictly Scrutinizing Campaign Finance Restrictions (& the Courts that Judge Them)

This article carefully parses the Supreme Court's decisions in Buckley v. Valeo and its progeny to ascertain whether restrictions on contributions to independent expenditures are subject to strict or a less exacting scrutiny, and whether they are unconstitutional under either level of scrutiny. Part I summarizes the pre-Nixon circuit split that had developed about the Buckley standard of review. Part II analyzes restrictions on election speech and political association in a context that falls between contributions to candidates and expenditures, namely, contributions to independent expenditure committees, and tries to reconcile the facially conflicting holdings in Buckley and Citizens Against Rent Control. Looking beyond the simplistic distrinction between quot;contributionsquot; and quot;expenditures,quot; the article posits that limits on contributions to independent expenditures are an even more severe infringement upon core First Amendment rights of political speech and association than the Court was willing to acknowledge with respect to the restrictions on contributions to candidates at issue in Buckley and Nixon, and thus must be subjected to strict scrutiny. Moreover, I contend that the Supreme Court already has applied strict scrutiny to such restrictions in the context of contributions to committees making independent expenditures in a ballot measure election, and that the same level of scrutiny is therefore appropriate when assessing such restrictions on contributions to independent expenditure committees in candidate elections.Finally, in Part III, I contend that restrictions on contributions to independent expenditure committees are unconstitutional even under the slightly-less-than-strict, quot;rigorousquot; scrutiny that the Court now applies to restrictions on contributions to candidates, and therefore are clearly unconstitutional under the strict scrutiny that should be applied