1 120 S. Ct. 897 (2000).
2 424 U.S. 1 (1976).
3 ShrinkPAC, 120 S. Ct. at 901.
4 See id. at 910 (Stevens, J., concurring) (arguing that money used for political campaigns is not speech, per se, and should be treated only as “speech by proxy”).
5 See id. at 914 (Breyer, J., concurring) (contending that Buckley does not and the Court should not reject an equality rationale for campaign finance restrictions and that it is perfectly appropriate for the government to prevent the voice of the few from drowning out the voices of the many).
6 See id. at 914–16 (Kennedy, J., dissenting) (proposing that Buckley be overruled to allow for less government regulation and that the entire system does a great disservice to the First Amendment).
7 See ShrinkPAC, 120 S. Ct. at 916–17 (Thomas, J., dissenting) (arguing that Buckley should be overruled to prohibit significant regulation).
8 See id. at 916 (Kennedy, J., dissenting), 916–19 (Thomas, J., dissenting).
9 See Bradley A. Smith, Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform, 105 Yale L.J. 1049, 1054 (1996) (noting that in 1995 more than 400 newspapers editorialized in favor of campaign finance reform). The editorial push for campaign finance reform only intensified after the 1996 elections. See, e.g., A Fundraiser’s Guilty Verdict, N.Y. Times, Mar. 3, 2000, at A23 (noting the conviction of Maria Hsia, a Democratic party fundraiser and associate of Vice President Al Gore for illegal activities relating to a fundraiser held at a Buddhist temple in California and advocating more stringent campaign finance laws). From January 1, 1999 to March of 2000, there were more than 3000 editorial and op-ed pieces favoring campaign finance reform.
10 See Smith, supra note 9, at 1059.
11 See ShrinkPAC, 120 S. Ct. at 914 (Breyer, J., concurring).
12 See id. at 916–17 (Thomas, J., dissenting).
13 See Buckley, 424 U.S. at 39, 44–45.
14 See id. at 26–27.
15 See id. at 143–44. The current system of campaign financing closely mirrors this Buckley framework. Individual contributors are limited to making donations of $1,000 per candidate, per election. 2 U.S.C. � 441a(a)(1)(A) (1994). Political action committees are limited to contributing $5,000 per candidate, per election. 2 U.S.C. � 441a(a)(2)(A) (1998). There is also an overall cap of $25,000 on individual contributions to all candidates in one calendar year. Id. (1)(B)–(C). Most of the existing controversy over campaign finance reform is over so-called “soft” money. Soft money is not subject to federal regulation and consists of contributions made to political parties and independent committees which then use the money to indirectly support candidates. Federal election law prohibits the use of soft money to support a particular candidate; it may only be used for general issue advocacy and party building.
16 Buckley, 424 U.S. at 13.
17 Id. at 13 n.16.
18 U.S. Const. art. I, � 4.
19 See generally Lillian R. BeVier, Campaign Finance Reform: Specious Arguments, Intractable Dilemmas, 94 Colum. L. Rev. 1258 (1994); Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L. Rev. 1281 (1994); Bradley A. Smith, Money Talks: Speech, Corruption, Equality and Campaign Finance, 86 Geo. L.J. 45 (1997).
20 See generally, e.g., United States v. Lopez, 514 U.S. 549 (1995) (invalidating the Gun Free Schools Act on the grounds that it exceeded Congress’ authority to regulate under the Commerce Clause; it was the first law struck down on such grounds since 1937).
21 See infra notes 23–57 and accompanying text.
22 See infra notes 58–96 and accompanying text.
23 See infra notes 97–168.
24 U.S. Const. art. I, � 2, cl. 2.
25 U.S. Const. art. I, � 4.
26 See United States v. Classic, 313 U.S. 299, 311, 316 (1941).
27 The Federalist No. 59, at 362 (Alexander Hamilton) (Clinton Rossiter ed., 1961) [hereinafter No. 59].
28 Id.
29 Id.
30 See id. at 361–63.
31 4 Debates on the Federal Constitution 54 (J. Elliot ed., 1996) [hereinafter Elliot’s Debates].
32 No. 59, supra note 27, at 363.
33 3 Records of the Federal Convention 311 (M. Farrand ed., 1937) [hereinafter Records].
34 See 4 Elliot’s Debates, supra note 31, at 55, 68. Opponents of the Constitution feared that Congress would use what they saw as the vast powers of the Elections Clause to establish election regulations that would prefer candidates of a particular class or faction. See id. Iredell responded by emphasizing the limits of the powers conferred by the Elections Clause, for example, that regulation of the time of election was limited only to the period within the two year term for Representatives embodied in Article I, Section 2. See id. at 53.
35 2 Records, supra note 33, at 240 (comments of James Madison); see also United States. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833–34 (1995); supra notes 64–72 and accompanying text.
36 See 2 Records, supra note 33, at 240–41.
37 4 Elliot’s Debates, supra note 31, at 71 (statement of Mr. Steele).
38 The Federalist No. 60, at 371 (Alexander Hamilton) (Clinton Rossiter ed., 1961) [hereinafter No. 60].
39 See id. at 371. Critics of the Constitution feared that it would elevate the concerns of the mercantile class over that of the landed, farming classes.
40 See 3 Records, supra note 33, at 267. In this speech to the Massachusetts convention, Rufus King noted that the electoral scheme allowed for some differences based on each state’s peculiarities; for example, in Massachusetts’ elections “the manner was by ballot, and the places towns.” Id. There was also some concern that the “time” provision in the Elections Clause would permit Congress wide latitude, perhaps allowing elections to be held only once every twenty years. See 4 Elliot’s Debates, supra note 31, at 55. Future Supreme Court Justice James Iredell responded that this term was limited by the command of Article I, Section 2, that the House of Representatives be elected every two years. See id. at 54.
41 No. 59, supra note 27, at 363; 3 Records, supra note 33, at 311. States could “at any moment annihilate [the federal government] by neglecting to provide for the choice of persons to administer its affairs.” No. 59, supra note 27, at 363. James Madison argued that “should the people of any state, by any means, be deprived of the right of suffrage, it was judged proper that it should be remedied by the general government.” 3 Records, supra note 33, at 311. Both Madison and Rufus King pointed to South Carolina as an example of the sort of representational inequalities the Elections Clause sought to avert on the national level. See id. at 267, 311. South Carolina apportioned their state representatives in the state constitution, the result being that, at the time of the adoption of the Federal Constitution, Charleston, by the operation of state constitutional law, was grossly overrepresented in the state assembly, to the detriment of those in the areas that were less populated when the representational scheme of South Carolina was adopted. See id.
42 See 3 Records, supra note 33, at 267–68.
43 No. 59, supra note 27, at 366.
44 See 3 Records, supra note 33, at 311–12.
45 See 2 Records, supra note 33, at 251.
46 See id. at 121–22.
47 See id. at 120–22.
48 See id. at 122.
49 See id. at 121–22.
50 See 2 Records, supra note 33, at 249–50.
51 Id.
52 Id.
53 Id. at 250; see The Federalist No. 52, at 293–98 (James Madison) (Clinton Rossiter ed., 1961).
54 313 U.S. 299, 316 (1941).
55 Powell v. McCormack, 395 U.S. 486, 549–50 (1968).
56 Id. at 490–91.
57 See id. at 492–93.
58 See id. at 548.
59 See id. at 550. The Court also held that Congress could have expelled Powell for conduct during that term (but not for conduct in prior terms) but since the vote had been on exclusion and not expulsion, the Court could not have calculated whether he would have been expelled by his colleagues if that was the basis of the excluding vote. See id. at 506–12.
60 See Powell, 395 U.S. at 547.
61 Id. at 547.
62 See id. at 533–34.
63 See id. at 540–41. In the debate at the Constitutional Convention, Gouvernor Morris had declared that it would be more proper to regulate the qualifications of the electors than tamper with their choices of elected officials. See 2 Records, supra note 33, at 121.
64 Powell, 395 U.S. at 540–41 (quoting 2 Elliot’s Debates, supra note 31, at 257).
65 Cf. No. 59, supra note 27, at 362.
66 United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 837–38 (1995).
67 See Thornton, 514 U.S. at 792–93.
68 See No. 60, supra note 38, at 371.
69 Thornton, 514 U.S. at 793–94.
70 Id. at 794.
71 Id. (quoting Powell, 395 U.S. at 541 n.76 (quoting 2 Elliot’s Debates, supra note 31, at 292–93)).
72 Id. at 837.
73 Id. at 793 (quoting Powell, 395 U.S. at 548).
74 Thornton, 514 U.S. at 793–94.
75 See id. at 835–38; Powell, 395 U.S. at 540 n.74, 541 n.76; 2 Elliot’s Debates, supra note 31, at 292–93.
76 See Thornton, 514 U.S. at 820–21; Powell, 395 U.S. at 547–48.
77 See Thornton, 514 U.S. at 832–33.
78 See id. at 833–34.
79 See id. at 837.
80 See id. at 832.
81 Id. at 835.
82 Thornton, 514 U.S. at 835; see also Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986); Smiley v. Holm, 285 U.S. 355, 366 (1932).
83 Thornton, 514 U.S. at 835.
84 See id. at 794–95.
85 See id. at 835; Powell, 395 U.S. at 543.
86 100 U.S. 371, 383–84 (1879).
87 Id. at 385–87.
88 See id. at 379–82; cf. United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 835 (1995).
89 See Siebold, 100 U.S. at 379–82.
90 Id. at 382.
91 Id.
92 See id. at 392–93.
93 See 110 U.S. 651, 660–62 (1884).
94 Id. at 657.
95 See id. at 657, 660.
96 See id.
97 Id. at 658.
98 See Yarbrough, 110 U.S. at 660. The general ticket was a method for electing all of a state’s delegation to the House of Representatives on an at-large basis. See id.
99 See id. at 666.
100 Id.
101 Id.
102 Id. at 667.
103 Yarbrough, 110 U.S. at 667.
104 See 285 U.S. 355, 365 (1932).
105 Id. at 361–62.
106 See id. at 361.
107 Id. at 361–63.
108 See id. at 361–63.
109 See Smiley, 285 U.S. at 365.
110 See id. at 366–67.
111 See id.; cf. Thornton, 514 U.S. at 832.
112 See Smiley, 285 U.S. at 366.
113 Id.
114 See id. at 367.
115 See id. at 366.
116 See id. at 366–67; 2 Records, supra note 33, at 240.
117 The first campaign finance law, popularly known as the Tillman Act, had been passed in 1907, banning corporate contributions to political campaigns. See Robert F. Bauer & Doris M. Kafka, United States Federal Election Law 3 (1984). This was followed by expenditure caps adopted in 1910 and 1911 and the Federal Corrupt Practices Act of 1925 (“FCPA”). See id. at 3–4.
118 290 U.S. 534, 548 (1933).
119 See id. at 541–42.
120 Id. at 547.
121 Id. at 548.
122 Id.
123 Buckley v. Valeo, 424 U.S. 1, 143–44 (1976).
124 See id. at 13 n.16, 14–15.
125 See Bauer & Kafka, supra note 117, at 7.
126 See Buckley, 424 U.S. at 14–15.
127 Id. at 19.
128 Id. at 21.
129 See Nixon v. Shrink Mo. Gov’t PAC, 120 S. Ct. 897, 910 (2000) (Stevens, J., concurring).
130 Buckley, 424 U.S. at 25.
131 See Am. Party of Tex. v. White, 415 U.S. 767, 780 (1974).
132 Laurence H. Tribe, American Constitutional Law 1062 (2d ed. 1988).
133 See id.
134 See Storer v. Brown, 415 U.S. 724, 730 (1974).
135 See Lubin v. Panish, 415 U.S. 709, 716 (1974).
136 One could readily see that a campaign finance law that permitted incumbents to raise up to $5,000 from an individuals and challengers only $1,000 per person would be a constitutional violation. It is the contention of this Note that the Supreme Court, in applying strict scrutiny to campaign finance regulations ought to take the practical effects of a campaign finance law into account.
137 See Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).
138 See id. at 790–93.
139 See id. at 801–02.
140 See Jenness v. Fortson, 403 U.S. 431, 442 (1971).
141 See 120 S. Ct. 2402, 2414 (2000).
142 See id.; Comment, California Democratic Party v. Jones, 115 Harv. L. Rev. 269, 269 (2000) [hereinafter Comment]. The law was challenged by the Republican, Democratic, Libertarian, and Peace and Freedom Parties. These four parties had by-laws requiring their nominees to be selected in closed primaries. See id. at 271.
143 This is to be contrasted with partisan primaries, in which only voters of a particular party (and independents in open primaries) select the party nominee and non-partisan primaries where the top two vote-getters, regardless of party, advance to the general election. See Comment, supra note 142, at 270–71.
144 See Jones, 120 S. Ct. at 2407.
145 See id. at 2402, 2407.
146 See id. at 2407 & n.5; Comment, supra note 142, at 271. The Court did so to distinguish Jones from the White Primary Cases, which held that there is no First Amendment right to race-based exclusion from the electoral process. See Jones, 120 S. Ct. at 2407 & n.5; Comment, supra note 142, at 271–72.
147 See Jones, 120 S. Ct. at 2411–12.
148 For example, in Buckley v. Valeo, 424 U.S. 1 (1976), the Court simply accepted the $1,000 limit on individual contributions without any consideration of why this number is proper to prevent corruption and the appearance of corruption.
149 See Jones, 120 S. Ct. at 2412–13.
150 See id. at 2412.
151 See id.
152 See id. at 2413.
153 See id.
154 See Cal. Democratic Party v. Jones, 120 S. Ct. 2402, 2412 (stating that California’s interest in promoting moderation through the blanket primary reduced “to nothing more than a stark repudiation of freedom of political association: Parties should not be free to select their own nominees because those nominees, and the positions taken by those nominees, will not be congenial to the majority. We have recognized the inadmissibility of this sort of ‘interest’ before”).
155 See Ex parte Yarbrough, 110 U.S. 651, 658 (1884); Fred Wertheimer & Susan Weiss Maines, Campaign Finance Reform: A Key to Restoring the Health of Our Democracy, 94 Colum. L. Rev. 1126, 1127–31 (1994).
156 See Yarbrough, 110 U.S. at 666; Edward B. Foley, Equal-Dollars-Per-Voters: A Constitutional Principle for Campaign Finance, 94 Colum. L. Rev. 1204, 1204 (1994). Foley’s argument goes a step further than the concerns of the Court in Yarbrough to embrace a notion of equality of voice in the campaign process and not simply the protection of the individual franchise in the act of voting itself. See Edward B. Foley, supra, at 1226–28.
157 See Burroughs & Cannon v. United States, 290 U.S. 534, 548 (1933).
158 See Yarbrough, 110 U.S. at 666–67; 3 Records, supra note 33, at 311.
159 See United States v. Classic, 313 U.S. 299, 316 (1941).
160 See United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 837–38 (1995); Powell v. McCormack, 395 U.S. 486, 549–50 (1968).
161 2 Elliot’s Debates, supra note 31, at 257.
162 See id. at 257–58.
163 Id. at 257.
164 Id.
165 Yarbrough, 110 U.S. at 658.
166 Cf. Classic, 313 U.S. at 316.
167 See Thornton, 514 U.S. at 794–95, 837; Powell, 495 U.S. at 547–48.
168 Thornton, 514 U.S. at 784, 837.
169 See Powell, 395 U.S. at 490, 547–48.
170 See id. at 490.
171 See Thornton, 514 U.S. at 784, 837.
172 Cf. Smiley v. Holm, 285 U.S. 355, 364–65 (1932).
173 See Thornton, 514 U.S. at 794–95; Powell, 395 U.S. at 541, n.76 (quoting 2 Elliot’s Debates, supra note 31, at 292–93).
174 See 2 U.S.C. � 441a(a)(1)(A) (1994) (limiting contributions to $1,000 per individual donor); see also Trevor Potter, Where are We Now? The Current State of Campaign Finance Law, in Campaign Finance Reform: A Sourcebook 5–6, 9–10 (Anthony Corrado et al. eds., 1997).
175 Cf. Yarbrough, 110 U.S at 666–67.
176 See Smiley, 285 U.S. at 366.
177 See U.S. Const. art. I, � 4; see also 2 Records, supra note 33, at 240–41 (statement of James Madison); 4 Elliot’s Debates, supra note 31, at 71 (statement of Mr. Steele).
178 Thornton, 514 U.S. at 835.
179 There is a close connection between the individual right to vote and the prevention of corruption. See Yarbrough, 110 U.S. at 660–62. Corruption dilutes the influence of an individual voter. The right to vote and have that ballot counted is separate from the right to receive and turn in a ballot—a right that would be essentially meaningless if the votes were not counted or additional ballots cast that served to dilute the influence of an individual vote.
180 2 Records, supra note 33, at 240.
181 No. 60, supra note 38, at 371.
182 4 Elliot’s Debates, supra note 31, at 71.
183 3 Records, supra note 33, at 267.
184 See Thornton, 514 U.S. at 835.
185 See, e.g., Smiley, 285 U.S. at 366; Yarbrough, 110 U.S. at 657, 660; Siebold, 100 U.S. at 396.
186 Smiley, 285 U.S. at 366.
187 See id.
188 See id.
189 See id.
190 See id.
191 See Siebold, 100 U.S. at 382, 396.
192 See Smiley, 285 U.S. at 366.
193 Id.
194 See id.
195 See id.
196 See Buckley v. Valeo, 424 U.S. 1, 45 (1976).
197 See Gary C. Jacobson, Campaign Finance and Democratic Control: Comments on Gottlieb & Lowenstein’s Papers, 18 Hofstra L. Rev. 369, 377 (1989); Smith, supra note 9, at 1067 n.113.
198 See Yarbrough, 110 U.S. at 667. Interestingly, the Court has ruled that the bribery of voters is not a constitutional violation per se. See United States v. Bathgate, 246 U.S. 220, 226 (1918).
199 See 2 Elliot’s Debates, supra note 31, at 257.
200 See Storer v. Brown, 415 U.S. 724, 730 (1974).
201 See Buckley, 424 U.S. at 21, 60–61, 107–08.
202 See id. at 26–27.
203 See id. at 27–28.
204 Cf. Powell, 395 U.S. at 543.
205 See Smith, supra note 9, at 1052–55.
206 Id. at 1062–63.
207 See Larry Sabato & Glenn Simpson, Dirty Little Secrets 23–28 (1995). Sabato and Simpson outline the benefits given to incumbents and certain kinds of candidates by the $1,000 contribution ceiling. This limit also requires a vast input of time in fundraising operations and has served to discourage several nationally known figures from running for office.
208 See Buckley, 424 U.S. at 39.
209 See id. at 114.
210 See id. at 118–19.
211 See generally Sabato & Simpson, supra note 207, at 257–363.
212 See Bush Ad Accuses McCain of Opposing Cancer Research, N.Y. Times, Mar. 4, 2000, at A1.
213 See Jones, 120 S. Ct. at 2412.