Laying the Foundation for a New Jurisprudence in State Courts

Abstract

Abstract

The current formula for judging campaign finance restrictions takes limits on money in politics to be burdens on freedom of speech that can only be justified if they are shown to be narrowly tailored to achieving a compelling state interest. However, the Supreme Court effectively views preventing the reality or appearance of quid pro quo corruption as the only compelling state interest that could ever justify certain types of limits. In crafting this jurisprudence, the Court has discounted or ignored the importance of several other democratic values, beyond preventing a narrow type of corruption, such as political equality, increasing participation, preventing systemic corruption, and protecting electoral integrity, among others. With strong public discontent about money in politics and a vacancy on the Supreme Court, now is a particularly apt time to explore ways to inject some of those devalued competing interests back into the jurisprudence. But even the most well-developed legal theories do not begin at the high Court, nor does the Court conjure doctrine out of thin air. The Supreme Court draws from and is, in a sense, in constant conversation with the lower federal courts and state supreme courts. This article is focused on one legal theory designed to give state supreme courts breathing room to examine and weigh some of the competing values discounted by the former Supreme Court majority. With this breathing room, state judiciaries can kick the tires on theories of alternative jurisprudences, which until now have primarily existed in books and law reviews. A growing body of law in state courts could help lay the foundation for the Supreme Court to veer towards a new jurisprudence that better reflects broad cultural norms about the role of money in politics and allows for laws that level the playing field in our elections.