Contingent Constitutionality, Legislative Facts, and Campaign Finance Law

Many of the Supreme Court’s important holdings concerning campaign finance law are not pure matters of constitutional interpretation. Rather, they are “contingent” constitutional determinations: the Court’s conclusions rest in substantial part on legislative facts about the world that the Court finds, intuits, or assumes to be true. While earlier commentators have recognized the need to improve legislative factfinding by the Supreme Court, other aspects of its treatment of legislative facts—particularly in the realm of campaign finance—require reform as well. Stare decisis purportedly insulates the Court’s purely legal holdings and interpretations from future challenge. Factually contingent constitutional rulings should, in contrast, be more susceptible to future revision. The facts underlying contingent holdings may change, litigants in a later case may present different evidence concerning those facts, social or technological developments may occur, new discoveries may be made, or a later court’s assessments or assumptions concerning those facts may differ. The Court’s campaign finance jurisprudence exhibits the opposite tendency of what theory would predict, however. The Court has proven much more willing to revisit its purely legal interpretations of the First Amendment than its constitutionally contingent holdings. Many of the Court’s campaign finance rulings pay insufficient attention to the importance of legislative facts. They reiterate holdings of prior cases as if they were pure declarations of law, without recognizing the underlying legislative facts upon which those holdings depend. This can lead future courts to overestimate these holdings’ binding force, overlooking their dependence on certain facts. Several cases also make critical assertions concerning legislative facts without citing support either in the record or from extrinsic sources. Perhaps the biggest impediment to the effective use of legislative facts in campaign finance cases is the vagueness of the decision rules the Court has crafted to implement the First Amendment in this field. Many of the Court’s doctrines turn on standards—for example, whether an act poses a risk of apparent corruption—that are vague, underdefined, and fail to provide litigants and future courts with sufficient guidance concerning the nature and extent of evidence necessary to satisfy them. Such indeterminacy allows courts to resolve campaign finance cases based primarily on subjective, ad hoc intuitions and preferences rather than provable legislative facts