The recent landmark decision by the Supreme Court in McConnell v. FEC opens the way for new and more decisive regulation of the vast amounts of private and corporate money poured into the political system. However, the theoretical grounds for campaign finance regulation - as reflected in the Court's opinion - remain highly perplexing. The purpose of the current article is to tie together the evolving constitutional principle of equality in election with modern process theory and to apply them to the field of campaign finance. The inherent tension between the stringent requirement for political equality on the one hand and the reality of market inequalities on the other is a central characteristic of liberal democracy. I argue that this tension can best be explained and resolved by the idea of democratic partnership. That is, by the idea that while in liberal democracy the existence of economic inequality is justified on grounds of efficiency, such justification holds only if economic inequalities are subject to the continuing possibility of correction through redistribution of wealth, which should take place as part of the political process under conditions of equality. This analysis reveals that there is a certain paradox in the current campaign finance doctrine. While, according to the fundamental principles of liberal democracy market inequalities should be corrected through the functioning of the political distributive process-under conditions of equality according to the current doctrine of the Supreme Court, these same market inequalities are allowed to interfere and distort this very process of correction. I call this paradox the social inequality paradox. Because it is the role of the judiciary in liberal democracy to ensure the viability and competitiveness of the democratic process, I argue that it is also the role of the courts to intervene and resolve the social inequality paradox in the field of campaign finance.
Campaign Finance Reform and the Social Inequality Paradox,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol37/iss4/2