Money in Politics: Toward a New Jurisprudence

McCutcheon v. FEC marked the seventh time since 2006 that the Supreme Court has struck down a campaign finance regulation as unconstitutional. Rising to this challenge, last May the Brennan Center hosted a convening of distinguished legal scholars and advocates to fundamentally rethink the framework for regulating money in politics. Entitled Money in Politics 2030: Toward a New Jurisprudence, this gathering inspired our collaboration with the New York University Law Review on an online symposium to explore and develop a new constitutional doctrine governing money in American elections.

That conversation continues here. Below you will find an ongoing discussion animated by the ideas raised by the convening and symposium. Check back often as the conversation evolves and we continue toward a new constitutional vision for the 21st century. 

By placing the activities of voting and contributing in a common matrix of participation, the McCutcheon Court has demoted the right to vote from its usual position as the most fundamental democratic right.

The rise of powerful independent organizations has weakened political parties, leading to circumvention of campaign finance regulation and fewer points of entry into the political process by the party faithful.
 

The Ohio State University's Daniel P. Tokaji writes that the impact of judicial deregulation on the ground is at least as important as discussions of legal doctrine.

By equating the right to contribute with the more egalitarian rights of political participation, the McCutcheon Court moves closer to the view that the domains of politics and of the market need not be kept apart.

We lack participatory institutions that enable average Americans to engage in politics and governance, and a conception of the First Amendment broad enough to encourage and protect such collective efforts.   

 

Electoral integrity" is simply a variation on a theme that has existed at least since the 1976 case of Buckley v. Valeo: a public confidence argument for campaign finance limitations.