Balancing Disclosure and Privacy Interests in Campaign Finance

The law of campaign finance pits two important First Amendment interests against each other: disclosure and privacy. The Supreme Court has recognized the need to balance these two interests to allow for effective elections and to safeguard individual rights. However, through the years the Court has failed to balance these interests equally, resulting in vacillating decisions that unfairly sacrifice one for the other. From Burroughs v. United States in 1934 to Citizens United v. FEC in 2010, the Court has failed to provide a workable roadmap for legislatures in the creation of campaign finance disclosure laws and for lower courts in determining their constitutionality. This Article argues that a balance between privacy and disclosure can be struck by employing a “zone of constitutionality” test. The Article proposes factors the Court could weigh in determining whether a disclosure law falls within the zone of constitutionality. Finally, the Article argues that clear guidelines are essential to balance both interests; protect citizens and corporations’ First Amendment rights; and avoid unnecessary litigation to the lower courts

Comparative Reasoning and Judicial Review

Many states have enacted constitutions that are influenced by the U.S. Constitution, and foreign courts often look to the jurisprudence of the U.S. Supreme Court or other foreign courts for guidance. The US. Supreme Court, however, remains insulated from constitutional developments in other countries, despite calls by some Justices for greater openness to foreign law as a comparative tool. This Article examines the ramifications of a comparative approach to judicial reasoning and examines how attitudes toward the use of foreign and comparative analysis can be understood as parts of more general theories of judicial review and authority. The Article compares recent case law of the US. Supreme Court and the Supreme Court of Canada to construct enforcement and dialogic models of judicial reasoning. The analysis juxtaposes judicial attitudes about foreign law to concerns about local authority and the interrelationship of legal institutions in a domestic system. The purpose is not to detail how the use of foreign law impacts the development of a particular legal doctrine, but rather to discuss how the acceptance or rejection of foreign law fits within or transforms other aspects of judicial reasoning. The Article ultimately suggests that comparative analysis neither necessarily undermines local authority nor disconnects legal analysis from its local origins when encompassed in the dialogic model