Making Law with Lawsuits: Understanding Judicial Review in Campaign Finance Policy
Campaign finance law presents quite a puzzle: It is an area of federal policy closely tied to the interests of incumbents in the political branches, and yet, it is controlled to a great extent by unelected federal court judges. While we tend to assume that First Amendment considerations drive judicial review here, scholars have yet to account for political leaders’ decisions to establish federal court jurisdiction in the first place, allowing lawsuits that either challenge or enforce the law. Can it be that Congress went to great lengths to write statutes regulating the use of money in elections, but had nothing to say about how and to what extent courts would review the law?
This Article examines the role political leaders played in judicializing campaign finance policy. In a survey of nearly a century of law, and in a close analysis of the legislative record, I make a number of surprising findings. I discover that there has been great variation in judicial review over this history and that it correlates directly with the choices activists and political leaders have made to mobilize legal institutions in the making of campaign finance policy. Moreover, I find that political leaders have maintained the upper hand in this: Where the efforts of independent policy activists ran counter to their interests—as they did for a brief period prior to Watergate—legislators quickly changed jurisdictional rules to foreclose activists’ access to federal courts. But, even as they restricted public interest litigation in the field, legislators actually moved to judicialize the policy still more, and continued to do so even after the Supreme Court substantially altered the law with its Buckley v. Valeo ruling. In fact, from 1974 onward, Congress deliberately delegated to the judiciary the power to interpret, enforce, and ultimately remake policy. This history reveals that campaign finance reform has long been a process of making law with lawsuits, where courts enjoy significant discretion to revise policy not primarily because of their own activism, but because political leaders have given them the job. . .
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