Making law with lawsuits: understanding judicial review in campaign finance policy.

• Author: Curry, Rebecca
• Position: I. Introduction through III. Enforcement Takes an Unexpected Turn, p. 389-416

1. INTRODUCTION II. NINETY YEARS OF LAW WITHOUT JUDICIAL POLICYMAKING A. Parallel Legal Restrictions B. Early Law Survives Constitutional Scrutiny C. The Policymaking Structure of Early Law III. ENFORCEMENT TAKES AN UNEXPECTED TURN A. Interest Group Enforcement B. More Independent Government Enforcement C. Policy Benefits Foreclosed 1. A Legal Exception for Independent Activists and Interest Groups 2. The Fall of an Important Control on Campaign Costs D. Implications for the 1974 FECA IV. THE JUDICIALIZATION OF CAMPAIGN FINANCE POLICY AFTER 1974 A. Reining in Legal Enforcement B. Increasing Judicial Discretion C. Opponents of Reform Appeal to Courts 1. Couching Political Opposition in Constitutional Rhetoric 2. Adding Vulnerable Provisions to the Law 3. Inviting Courts to Strike Disfavored Provisions 4. Limits to the "Blameshifting" Rationale D. The Pro-Reform Factions in Congress 1. Conflicts of Interest Among FECA's Proponents 2. Logrolling to Overcome Political Conflicts 3. Statutory Vagueness and the Problem of Regulating Campaign Assets E. Designing a New Policymaking Structure for Campaign Finance 1. Choosing a Delegate 2. Harnessing Judicial Power V. THE CONGRESSIONAL RESPONSE TO BUCKLEY V. VALEO A. Recreating the Responsive Agency 1. Further Limiting FEC Action and Restricting Reform Group Activism 2. Institutionalizing Political Ambivalence B. Maintaining Salient Restrictions Despite Buckley C. Implications for Judicial Power VI. CONCLUSION I. INTRODUCTION

   In much of the literature on campaign finance policy, judicial review is discussed as a choice judges make. As soon as Congress enacts a new statute limiting the use of money in elections, we are told, courts "jump in," often overturning important aspects of the legislature's regulatory scheme. (2) Because this scholarship focuses primarily on how judges' interpretations of First Amendment doctrine lead to these case outcomes, it tends to proffer a uniquely rights-oriented model of judicial power. (3) In this model, federal courts are independent actors, where judges may take up policy questions at will and where rights claims usually trump legislative preferences. While this concept was once no more than an unspoken premise in the literature, it now appears to be coming to the fore, as scholars frustrated with judicial decisions in this and other areas of election law demand that courts extricate themselves from "the political thicket." (4)

   On the surface, there is much to recommend this view. In 1974, Congress passed a landmark reform that regulated most uses of private wealth in federal elections; and for the first time, it established an independent regulatory commission to oversee the new rules. (5) No sooner had the Federal Election Campaign Act (FECA) gone into effect, than the Supreme Court struck down its expenditure ceilings as violations of the First Amendment's free speech guarantee. (6) Ever since the 1976 Buckley decision, the Court's First Amendment jurisprudence has been central to any discussion of how to solve the problems associated with campaign finance. (7)

   Still, that vision seems directly at odds with our general understanding of the constraints on judicial power in federal politics. After all, the history of constitutional adjudication is full of incidences where the other branches have undermined judicial rulings--either because unpopular decisions were overridden in the legislature, or because a lack of support from other policy leaders meant that such decisions effected no lasting policy change. (8) If "the least dangerous branch" could not win interbranch disputes over the income tax, the voting age, or the rights of slaves, (9) how did it come to have the last word on a matter as important to elected officials as campaign finance? (10)

   In this Article, I take up that question. Drawing on general theory from public law and judicial process scholarship, I posit that the judicial role in campaign finance policy is politically determined. Courts, being relatively passive institutions, tend not to become involved in any policy area until litigants bring cases. (11) In a basic way, then, judicial policymaking is dependent on the broader sociopolitical context that drives people to pursue change through litigation. In addition, the judicial role is politically determined because Congress controls most of the rules of jurisdiction for the federal courts. on any given issue, Congress can structure litigants' access to the judiciary, either creating important incentives to seek out judicial intervention or placing obstacles on the path to judicial review. (12) I have therefore undertaken an empirical study, using both legal and legislative archives as well as some secondary materials, to uncover the political determinants of judicial policymaking in campaign finance.

   Beginning with the country's earliest campaign finance laws, passed in the nineteenth century, and continuing through to the FECA revisions of 1974 and 1976, I find that there has been great variation in judicial review throughout the policy's 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 the groups' access to federal courts. But, even as they restricted public interest litigation in the field, political leaders 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 ruling. In fact, from 1974 onward, Congress deliberately delegated to the judiciary the power to interpret, enforce, and ultimately remake policy. Somewhat surprisingly, it was only when political leaders developed a preference for salient limits on their own funding practices that they turned over an important measure of policymaking authority to courts.

   Indeed, as we will see below, the history of courts in campaign finance policy demonstrates something of a paradox. That is, the more seriously the legislature wishes to restrict campaign finance practices among incumbents in the political branches, the less likely it is able to fashion those rules entirely through direct legislation. Instead, members of Congress find it necessary to delegate policymaking discretion to another branch of government as a way of overcoming policy conflicts in the legislature and entrenching the policy for the future. (13) Moreover, the delegation to independent courts--where constitutional rights protections should hold sway over political exigencies and legislative prerogatives--turns out to be lawmakers' chosen method for maintaining congressional control over the policy. (14)

   Such findings offer important insights into the role of courts, and rights mobilization, in election law. In the particular "political thicket" that grew up around campaign finance law after 1974, courts have found themselves making policy not necessarily because their jurisprudence required it, but because political leaders have given them the job. Moreover, while many scholars see Supreme Court action in this area as having foreclosed reform, it turns out that recourse to legal institutions has been key to legislative policymaking in the field. First, the promise of immediate constitutional review was critical to the passage of the 1974 Act--both for those who hoped to thwart the FECA reforms and for the majority coalition that supported them. Second, litigation was also chosen as a primary mechanism for the everyday application of the law. After Buckley, case-by-case lawmaking in federal trial courts would flesh out the legislation, working in concert with Agency rulemaking and allowing Congress to exercise oversight in the law's enforcement. Thus, the judicialization of our current campaign finance policy was caused, not by judges jumping in, but by lawmakers reaching out. (15)

   This history is therefore an important case study for students of constitutional politics more generally, because the legislature's reliance on courts in its policymaking process is not per se the submission of political prerogatives to constitutional values and rights jurisprudence. Instead, the judicialization of campaign finance policy represents an attempt by the political branches to have their cake and eat it too--enjoying all the benefits of constitutional litigation without any of its usual constraints.

   This Article proceeds as follows: Part II examines campaign finance law prior to the 1974 FECA, noting that Congress had long maintained direct control over the policy, with enforcement handled exclusively by legislative staff. Although early legal restrictions paralleled those of post-Watergate campaign finance reform, courts tended to defer to legislative preferences and uphold the statutes against constitutional challenges. Part III examines an important turning point in that deference and uncovers an interesting motive behind the judicialization of campaign finance policy after Watergate, namely, that the political branches sought out judicial review of campaign finance law as a way of regaining their own control over that policy. My study of the 1974 FECA legislation, in Part IV, finds considerable evidence that members of Congress deliberately delegated policymaking discretion to the courts, but did so in a way that harnessed judicial power in incumbents' interests. Part V analyzes the congressional reaction to the Supreme Court's review of that 1974 law and confirms the view that the Court's action was neither unexpected nor unwelcome to political leaders, who went on to judicialize the policy still further.

   **** II. NINETY YEARS OF LAW WITHOUT JUDICIAL...