In deciding campaign finance cases, the Supreme Court often has stressed that its role is limited to protecting First Amendment rights and does not include promoting any particular vision of democracy. This paper questions whether these tasks are in fact divisible in campaign finance cases. It concludes that they are not. The interest asserted by the government in campaign finance cases is, inevitably, the need to improve or protect the government's vision of democracy. Evaluating the relative importance of that interest requires judges to rely on some background theory of democracy: judges simply cannot determine what constitutional weight to give the government's asserted interest in promoting a democratic ideal without first relying on some baseline understanding of what that ideal should be. The Court has never directly confronted this issue, however, insisting instead that it is merely protecting rights without making normative judgments about democracy. This paper calls on the Court do confront its democracy-defining role directly, and suggests a decision- making paradigm the Court could use in doing so.
Defining Democracy: The Supreme Court's Campaign Finance Dilemma,
56 Hastings L.J. 77
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