In their dissenting opinion in McCutcheon v. FEC in 2014, four justices of the U.S. Supreme Court described the government’s interest in campaign finance regulation in terms of “electoral integrity.” But while they referenced the concept and made clear its importance, the dissenters did not fully flesh out what it might mean in the campaign finance context. With the makeup of the Court poised to change, the answer to this question could have broad implications for the Court’s future jurisprudence.
Drawing upon existing case law and our broader constitutional tradition, this working paper highlights four criteria for judging whether elections have integrity that have particular relevance to money in politics: representation, participation, competition, and information. It goes on to consider the impact that adopting these criteria would have on the viability of a wide range of policies, including contribution and spending limits, public financing, and disclosure. Although electoral integrity would not be a silver bullet to settle the many constitutional questions such measures implicate, taking it seriously as a government interest would still fundamentally reshape the Court’s approach in a more realistic, factually-grounded direction.
The full text of the working paper is available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2824750