Bring Back Equality

Abstract

This article makes the case for considering political equality as a compelling government interest in establishing campaign finance laws. The article considers the historic role of equality from the Declaration of Independence through the Fourteenth Amendment and then its more recent limitation as a valid basis for campaign finance regulation. The author argues that equality is closely related at the root to other interests such as fighting corruption or supporting discursive democracy, but that equality must also be considered on its own. The article proposes a concept of bounded equality, rather than perfect equality, to be applied in the campaign finance context. Even with a valid interest in equality, campaign finance laws must be respectful of the First Amendment and the important role of money in modern political communications. Equality can be a basis for upholding reasonable campaign finance laws, but not outright bans, very low limits, or felony penalties that are too restrictive of speech. The article also traces why limits on independent spending by individuals are a long-standing precedent, and a difficult one to overcome, even with a strong equality interest.