Office Hours:
Tuesday,
2 -3:30 p.m.

Contact Info:
Professor Spencer Overton
The George Washington University Law School
2000 H Street, NW
Washington, DC 20052

(202)994-9794
soverton@law.gwu.edu

Updated
6 February, 2005

Judicial Modesty and the Lessons of McConnell v. FEC
Forthcoming, Election Law Journal, Vol. 3, No. 2 (March 2004)

BY: SPENCER OVERTON
Associate Professor of Law
The George Washington University Law School

TO REQUEST A COPY OF THIS PAPER,
please contact Lillian White: lwhite@law.gwu.edu

ABSTRACT--Judicial Modesty and the Lessons of McConnell v. FEC

This Essay argues that the U.S. Supreme Court’s opinion in McConnell v. FEC illustrates three important lessons about judicial review in the distinct context of campaign finance: (1) precedent counts; (2) pragmatism beats platitudes; and (3) legislative judgments deserve respect.

According to early critics of McConnell, the Court abdicated its responsibilities in upholding the major provisions of the Bipartisan Campaign Reform Act. Critics claimed that the Court did not sufficiently explain its decisions, abandoned free speech principles, and ignored the self-entrenching motives of incumbents who passed the law. This Essay responds to these claims and asserts that they must be balanced against the gains that stem from tight language that emphasizes precedent, pragmatic consideration of competing interests and context, and congressional expertise in the political landscape of campaign finance.

In light of the limited competence and authority of judges to address political questions unique to campaign finance, adherence to precedent in deciding campaign finance cases enhances judicial credibility and provides legislatures a more stable framework for lawmaking. At the same time, however, campaign finance features evolving political practices, coalitions, organizations, and technologies that courts often cannot anticipate. When Congress identifies emerging practices that threaten democracy, a court should apply past cases pragmatically to the facts before it and avoid sweeping dogma that may grow dated and contribute to bad results in future cases.

Campaign finance is a complex area that involves competing considerations rather than absolutes. As a result, textured and multifaceted judicial review of campaign finance reforms is preferable to review that is either one-dimensionally deferential or one-dimensionally skeptical.