Abstract

On December 10, 2003 the United States Supreme Court issued its decision in McConnell v. FEC. In McConnell, the Court was asked to determine the constitutionality of the Bipartisan Campaign Reform Act ("BCRA"). A divided Court, in a deeply fractured decision in which six justices wrote individual opinions, upheld the major provisions of the legislation. Yet despite the almost 300 pages of reasoning provided by the Court, and a voluminous record developed by the district court, the Justices could not agree on what purportedly is the central issue in campaign finance law: whether the challenged regulations were necessary to combat political corruption or the appearance of such corruption. Why is this question so hard for courts to resolve? The answer, I believe, rests in what I have called the judiciary's "democracy defining dilemma."

This article has five parts. In Part I, I explain the analytical methodology developed by the Supreme Court in Buckley v. Valeo, and discuss how that methodology embodies the judiciary's democracy defining dilemma. In Part II, I discuss how the Court's post-Buckley, pre-McConnell cases have perpetrated the problem by shifting the focus of campaign finance cases to the meaning of "corruption." In Part III, I discuss the McConnell decision itself, and show how the deferential posture adopted by the Court in that case does not resolve the democracy-defining dilemma. In Part IV, I examine the role of the defining democracy dilemma in other political process cases. Finally, in Part V, I outline a new judicial decision-making methodology, one that is conscious of and attempts to manage the democracy-defining dilemma. I conclude that, while the democracy-defining dilemma is unavoidable in our legal system, a different methodology can help manage the most undesirable consequences of the dilemma, and can thereby create a genuine "space" for non-judicial participation in defining the democracy in which we live.

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