Scrutinizing Independent Expenditure Limits: A Case Against Super-Strict Scrutiny

Abstract

Abstract

Although Buckley v. Valeo purported to subject both contribution and independent expenditure limits to “exacting” scrutiny, contribution limits have since been subjected to a lower level of scrutiny than independent expenditure limits. Contribution limits survive if closely drawn to match a “sufficiently important” government interest. Meanwhile, limits on independent expenditures must be narrowly tailored to a “compelling” government interest. The Court has insisted that the only government interest important enough to justify limits on big money is the prevention of corruption or its appearance, and that, while contribution limits are justified by this interest, independent expenditure limits are not. By holding there is no good reason to limit what individuals can spend on elections, the Court has subjected independent expenditure limits to something more like super-strict scrutiny, condemning them to a strong presumption of unconstitutionality regardless of how high the limit.

This article makes a case against super-strict review of independent expenditure limits. Part II argues the Court should not apply strict scrutiny review because the right to spend unlimited amounts on elections allegedly burdened by such a limit is not so “core” as to invoke strict scrutiny when such a right can only be exercised by a tiny fraction of privileged Americans. However, even if strict scrutiny review of independent expenditure limits is appropriate, it should not be categorically fatal to any limit. Part III argues the Court's rigid rejection of government interests in strengthening democracy— including advancing political equality—has hindered the democratic branch from solving real democratic problems, including disparate access to political power on the bases of wealth and race and legitimate public concerns that government is only responsive to the donor class.