Americans are deeply unhappy with the growing role of big money in elections. At a time of secret money and super PACs, when billionaires sponsor candidates like racehorses, the power of their voices are diminished. Strikingly, this view is held widely across partisan and ideological lines.1 The current situation results, in considerable measure, from a series of misguided 5–4 U.S. Supreme Court decisions that struck down scores of campaign finance laws, to the point that what remains, in the words of Justice Breyer, is “a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”
Increasingly, leading legal scholars and others who study the Constitution have concluded that the Supreme Court’s interpretation of the First Amendment and its proper role in campaign finance cases is simply wrong. In response to recent rulings, they have worked to flesh out alternative understandings of the law of democracy and the First Amendment that many believe are more consistent with the Constitution’s true meaning. These approaches would allow for the restoration of many of the laws that this Court has struck down and prompt it to stand back and allow the democratically accountable branches to strike the proper balance on reform. Below, we discuss some of the most promising alternative understandings of the Constitution as it applies to regulation of money in politics. Each offers hope that a future Court will have the tools to ensure that American citizens can legally implement common sense regulation of money in our political system.
Rethinking Campaign Finance: Toward A Pro-Democracy Jurisprudence