The Constitutional Logic of Campaign Finance Regulation

This essay explores the potential implications of the creation of a distinct election period through the BCRA reforms to campaign finance law. The idea of a separate set of rights of expression during the immediate pre-election period is a relative newcomer to American law, but is a central feature of campaign finance law in other countries. The creation of a defined election period is the underpinning of strong restrictions on political speech in countries such as Britain, and is currently the source of tension under European law. Recent decisions of the European Court of Human Rights, most notably in Bowman v. United Kingdom, highlight the fundamental divide between animating conceptions of liberty and equality in the funding of the political process. By mildly introducing the idea of a separate regulatory sphere for a temporally-defined election period, BCRA intriguingly invites a reexamination of the core constitutional logic of American campaign finance law