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New articles by Spencer Overton

by Professor Spencer Overton
Forthcoming in the University of Pennsylvania Law Review
Full paper available at http://ssrn.com/abstract=569021

ABSTRACT: This Article uses the U.S. Supreme Court's recent opinion in McConnell v. FEC to argue that the law should play a central role in reducing the impact of disparities in wealth on political participation.

In upholding large parts of the Bipartisan Campaign Reform Act, the Court in McConnell acknowledged the adverse impact of concentrated wealth on widespread democratic participation and self-government. Even in the aftermath of the reforms upheld in McConnell, however, a small, wealthy and homogenous donor class continues to make relatively large contributions that fund the bulk of American politics. Less than one percent of the U.S. population makes financial contributions over $200 to federal candidates, and these contributions represent the vast majority of funds that candidates receive from individuals. Of those who contribute over $200, approximately 85 percent have household incomes of $100,000 or more, 70 percent are male, and 96 percent are white. This donor class effectively determines which candidates possess the resources to run viable campaigns.

Instead of preventing "corruption" or equalizing funds between candidates, this Article proposes that the primary goal of future reforms should be to reduce the impact of wealth and empower more citizens to participate in the funding of campaigns. On average, candidates should receive a larger percentage of their funds from a greater number of people in smaller contribution amounts.

After responding to "class-blind" campaign reform opponents' claims that the impact of wealth on democratic participation warrants minimal concern, this Article examines concrete proposals. Reforms like matching funds and tax credits for smaller contributions, combined with emerging technology, would enable more Americans to make contributions and would enhance their voices in our democracy. Consistent with the Court's approach in McConnell, reforms that empower smaller contributors prompt "candidates and political committees to raise funds from a greater number of persons" and "tangibly benefit public participation in political debate."

by Spencer Overton
Washington & Lee Law Review, Vol. 61, p. 663, May 2004.
Full paper available at http://ssrn.com/abstract=537043

ABSTRACT: The First Amendment doctrine governing campaign finance law allows judicial outcomes to turn on often unstated political assumptions about the appropriate role of money in campaigns. As illustrated by the conflicting opinions of different U.S. Supreme Court Justices in McConnell v. FEC, current narrow tailoring and substantial overbreadth tests provide inadequate guidance and compel judges to rely on their own political assumptions in balancing the need for regulation against the right of free speech. Judges skeptical of campaign reform err on the side of protecting speech, while judges supportive of reform lean toward tolerating regulations said to prevent corruption.

To resolve the conflict and fill the void in current doctrine, this Article identifies four democratic values that judges should balance in deciding whether campaign finance laws restrict too much protected speech: democratic deliberation, widespread participation, individual autonomy, and electoral competition. While political assumptions may influence judicial balancing of these values, this new approach is a better compromise of sensitivity to context, consideration of substantive democratic values, and judicial guidance than the alternatives. Honest exchange about how courts should balance relevant values in particular contexts, rather than a glossing over of tough issues with abstract rhetoric and mechanical categories, will allow for a more coherent doctrine.