The law of democracy.

• Author: Persily, Nathaniel
• Position: SYMPOSIUM

FOREWORD

As this issue of the Law Review goes to press, the country is once again embroiled in a series of controversies over basic questions concerning our democracy and electoral system. Those who thought the 2000 election might represent the exception now fear it may be the rule: courts have become deeply involved in almost every aspect of our electoral process. This Symposium represents an attempt by our nation's leading election law scholars to grapple with some of the novel and fundamental questions concerning the law of democracy that have presented themselves over the past few years.

This issue of the Law Review represents the end product of a "live" Symposium that took place at the University of Pennsylvania Law School on February 6-7, 2004. Bradley Smith, the Chairman of the Federal Election Commission, began the program with a keynote address that described the false hope of a perfect election. Emphasizing the battle over the 2000 election and the current controversies over campaign finance, Chairman Smith explained how a relentless pursuit of purging the government of corruption or its appearance, like the quixotic quest for a problem-free election, is more than can be expected of any democracy. The first panel picked up on the theme of campaign finance, and in particular, the Supreme Court's recent decision in McConnell v. FEC, which upheld the Bipartisan Campaign Reform Act (BCRA). That panel produced the articles authored by Robert Bauer, Richard Hasen, Spencer Overton, Kelli Lammie, and myself. The McConnell opinion represents what is perhaps the most sweeping treatment of the issues of political money, corporate political speech, and the rights of parties in the campaign finance system. The effects of the decision and the law it upheld were felt almost immediately by the parties and candidates in the 2004 campaign, who now needed to grapple with an environment in which corporate and union treasury money was banned both from the parties and from the airwaves. Each of the articles here examines the case from a different, and often conflicting, perspective, as Heather Gerken's commentary on the articles explains.

The second panel explored "New Issues in the Law of Democracy" and produced the Symposium papers authored by Richard Briffault, Elizabeth Garrett, and William Marshall. Both Marshall and Briffault's articles investigate the regulation of campaign-related speech. Marshall explores the issues involved with the...