Hastings Constitutional Law Quarterly


Molly Peterson


James Madison noted that "[t]here are two methods of curing the mischiefs of [a] faction: the one, by removing its causes; the other, by controlling its effects." Campaign finance regulation, often spoken of as curing the mischiefs of special interest groups, has experienced a popular resurgence spawned by inquiries into extranational contributions in the 1996 presidential election and the 104th Congress' filibuster of the McCain-Feingold reform package. Since the Supreme Court's decision in the 1976 case Buckley v. Valeo, striking several parts of the Federal Election Campaign Act for infringing upon First Amendment-protected political expression, the efficacy of campaign finance reform laws has been significantly abrogated by the Buckley-articulated necessity that to survive, such laws must be narrowly tailored to serve compelling government interests. While the Buckley Court relied solely on the interest of corruption, it concurrently indicated the possibility that other "ancillary" interests could also bolster reform. Subsequent Court decisions have characterized corruption as the sole interest emerging from Buckley, and have maintained a nearly impregnable strict scrutiny in this context of political expression.

During the past decade, several states have enacted more radical reforms, involving variable contribution limits or "cap gaps," partial public financing and aggregated group contribution limits-all of which have struggled to survive First Amendment challenges in federal and state courts. Most recently, in November of 1996, the state of Maine passed by referendum its Clean Election Act, structuring a full public financing system for state gubernatorial and representative races. Several groups are now challenging these laws on First Amendment grounds.

This Note reexamines the question of compelling government interests for campaign finance reform in light of "radical" reforms in Kentucky, Minnesota, Missouri, and Wisconsin and unprecedented full public financing in Maine. It concludes that a broader interpretation of corruption, preservation of representative government, and equalizing access to the process could each or together qualify as compelling government interests to withstand First Amendment review. In particular, both a broad conception of corruption and the interest in preserving representative government could justify Maine's Clean Election Act. While the First Amendment requires a high level of review, other constitutional interests in tension with the freedom of expression could require a broader conception of the interests of the state.