The Yale Law Journal

March 2017

Williams-Yulee and the Anomaly of Campaign Finance Law

First AmendmentLocal GovernmentConstitutional Law

In 2015, the U.S. Supreme Court held in Williams-Yulee v. Florida Bar that states may prohibit candidates for judicial office from personally soliciting campaign donations in order to protect the appearance of judicial integrity.2 For only the third time in its history, the Court upheld a law subjected to strict scrutiny under the First Amendment’s Free Speech Clause.3 Many commentators noted that the opinion employed a heavily watered-down version of strict scrutiny analysis to reach this result.4 Indeed, as Justice Alito’s dissent stated, the judicial ethics canon at issue was “about as narrowly tailored as a burlap bag.”5 As the decision filters down into the lower courts and into other areas of law, Williams-Yulee’s forgiving form of tailoring analysis could unduly dilute what should be the most protective level of judicial scrutiny. There is already some evidence, albeit limited, of such dilution.6 Taken at face value, then, Williams-Yulee’s tailoring analysis could fundamentally alter First and Fourteenth Amendment doctrine.7

Williams-Yulee was not a fluke. Rather, it was the result of the Court’s treatment of many campaign finance regulations as core speech restrictions subject to strict scrutiny. When the overwhelming force of strict scrutiny analysis meets an equally powerful interest, such as judicial integrity, one or the other must fall. The Court ultimately chose to abandon the former. Yet there is a legally sound alternative that the Court did not consider. Instead of struggling within the confines of their strict scrutiny framework, thereby damaging its structure, the Justices should simply have applied a different framework. This Comment argues that the Court could have avoided the First Amendment dilemma in Williams-Yulee—and could prevent similar dilemmas in the future—by deciding campaign finance cases under its broader election law doctrine, rather than its pure First Amendment doctrine.7

The Court’s analysis of other aspects of the election process—such as ballot access, political party activities, and voting rights—has evolved along a different track from that of campaign finance. In a series of cases, most notably Anderson v. Celebrezze8 and Burdick v. Takushi,9 the Supreme Court developed a flexible balancing test to determine the constitutionality of most election regulations.10 The Burdick test, as this balancing act is sometimes called, is the closest standard the Court has to a Grand Unified Theory of Election Law.11 By folding campaign finance into the Burdick framework, the Court could decide cases like Williams-Yulee without invoking strict scrutiny, and without creating negative repercussions throughout First and Fourteenth Amendment law.

This Comment enters an existing debate over how courts should analyze campaign finance laws and other election regulations. Judges and authors have noted that the Court has left campaign finance out of the jurisprudential framework for election law cases.12 Scholars have sparred over whether this situation should be changed and, if so, what campaign finance doctrine should look like.13 At least two authors have directly advocated for using some form of balancing analysis in campaign finance challenges, though neither proposes using the Burdick test.14 By explicitly arguing that the Court should fold campaign finance law into the Burdick test, this Comment adds a different perspective to a growing literature debating whether and how to unify the domains of election law. It also provides a new way to examine Williams-Yulee itself. As Williams-Yulee is a relatively new decision, it has not yet generated substantial academic scholarship. Several early commentators lamented the Court’s approach to strict scrutiny analysis, but many of them simply argued that the Court should have decided the case the other way.15 This Comment, by contrast, situates Williams-Yulee in a broader framework, reexamining the divide between the campaign finance and election law doctrines.

This Comment proceeds in two Parts. Part I discusses the Court’s ruling in Williams-Yulee and explores how the analysis developed to this point. It then discusses Williams-Yulee’s potential to affect First and Fourteenth Amendment cases. Part II lays out an alternative jurisprudential path. It describes how campaign finance law diverged from the rest of election law, explains the modern Burdick test, and shows how the test’s application would affect the analysis in Williams-Yulee and other campaign finance cases. Part II also addresses the most common theoretical arguments against using the Burdick test in this area.

i. campaign finance and strict scrutiny, before and after williams-yulee

The Court’s opinion in Williams-Yulee is, in some sense, the culmination of a longtime trend. For decades, the Court has treated campaign finance as a pure speech and association issue, rather than as a question of election regulation.16 During the Roberts Court years, the conservative majority has steadily ratcheted up its scrutiny of campaign finance laws.17 The regulation at issue in Williams-Yulee posed a problem for the Court’s campaign finance doctrine: it served a particularly compelling interest but was not narrowly tailored in the way traditionally required to sustain speech restrictions. To save Florida’s solicitation ban, the Court chose to relax its rigid tailoring analysis, a move that will have significant ripple effects throughout First and Fourteenth Amendment law.

A. The Williams-Yulee Decision

In 2009, Lanell Williams-Yulee (“Yulee”), a candidate for county court judge in Hillsborough County, sent out a mass mailing.18 The mailing introduced her to voters, described her qualifications, and asked for “[a]n early contribution of $25, $50, $100, $250, or $500.”19 Yulee also posted the letter on her campaign’s website.20 The Florida Bar filed suit against Yulee, claiming that she violated Florida Canon of Judicial Ethics 7C(1), which prohibits any candidate “for a judicial office that is filled by public election between competing candidates” from “personally solicit[ing] campaign funds.”21

Yulee, however, claimed that Canon 7C(1) was a content-based restriction on her speech, and that preventing her from personally soliciting donations through a mass mailing violated the First Amendment.22 The Florida Supreme Court,23 and then the U.S. Supreme Court,24 agreed with Yulee’s characterization of the restriction, but disagreed with her conclusion. Both courts applied strict scrutiny but upheld Canon 7C(1) as a narrowly tailored means of protecting the integrity—and the appearance of integrity—of the judiciary.25 For the justice system to work, the U.S. Supreme Court reasoned, the public must believe that justice will be dispensed fairly by neutral magistrates.26 States may foster such public confidence by prohibiting judicial candidates from soliciting campaign donations without violating the First Amendment.27

For a campaign finance case, the Court’s reasoning was as unusual as the outcome. The majority cared so deeply about Florida’s interest—preserving judicial integrity—that it simply could not conduct the truly “strict” strict scrutiny analysis that the Court typically applies.28 To reconcile its view of the state interest with the level of scrutiny required by its precedents, the Court emphasized how little Canon 7C(1) burdens judicial candidates’ speech. It asserted that the canon “aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary”—solicitation of contributions by judicial candidates themselves.29 It also noted that the canon applied evenly to all judicial candidates.30 In the end, the Court insisted that “Canon 7C(1) restricts a narrow slice of speech,”31 giving candidates near-total freedom to receive money through their campaign committees and to speak about political issues.32 To the majority, it seems, the solicitation ban was simply not a great burden.

B. Williams-Yulee in Doctrinal Context

The Court’s analysis in Williams-Yulee was so unusual because, under its established First Amendment doctrine, the Court should have struck down Canon 7C(1). For decades, some Justices have advocated for subjecting all campaign finance regulations to strict scrutiny.33 The Court has refused to go this far,34 instead enforcing a fundamental divide. Campaign finance laws that directly restrict speech, such as expenditure limits and regulations on candidate communication, receive strict scrutiny and are almost uniformly struck down.35 Laws that do not impose such “onerous” constraints on speech, such as campaign contribution limits, public financing schemes, and disclosure requirements, are subject to slightly lesser burdens.36 Contribution limits, for instance, need only be “closely drawn” to serve a “sufficiently important interest.”37

While formally maintaining this divide, the Roberts Court has become more willing to impose strict scrutiny, asserting that challenged laws create content- or speaker-based restrictions on speech. For example, in Davis v. FEC, the Court struck down a provision that raised campaign contribution caps for candidates with self-funded opponents;38 then, in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, it invalidated a law that increased public financing grants in response to privately funded opponents’ spending.39 The Court treated both of these provisions as speaker-based restrictions on the self- or privately financed candidates’ speech.40 And the Court struck down a ban on corporate independent expenditures in Citizens United v. FEC because it “impose[d] restrictions on certain disfavored speakers.”41 Even when it has not applied strict scrutiny, the Court has become increasingly hostile toward campaign finance laws, invalidating the very sorts of regulations that it had previously upheld.42

In Williams-Yulee, the parties agreed that Canon 7C(1) was a content-based restriction on judicial candidates’ speech.43 Because solicitations are “intertwined with informative and perhaps persuasive speech,” the canon “infringe[d] Yulee’s freedom to discuss candidates and public issues—namely, herself and her qualifications to be a judge.”44 The Court had already assumed that speech restrictions on judicial candidates are subject to strict scrutiny.45 Given all this, and given that laws rarely survive strict scrutiny, the solicitation ban would normally have been struck down.

But the Court did not follow its usual path, dismissing what are normally statute-killing objections. The dissenting Justices rightly pointed out that Canon 7C(1) bans solicitations in any form and of any person—without heed to whether the solicitations threaten judicial integrity.46 In other words, the ban is over-inclusive. The Court swept away this concern, stating that, “most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form.”47 Canon 7C(1) also contains numerous loopholes: close friends may solicit on a candidate’s behalf, and candidates can learn who donated and write them thank-you notes.48 The Court likewise rejected this argument, saying that “the First Amendment imposes no freestanding ‘underinclusiveness limitation,’” and that states “need not address all aspects of a problem in one fell swoop.”49 This is far from narrow tailoring, at least as the Court has normally defined the term.

In order to maintain public confidence in judicial integrity, the Court had to minimize the burden that Canon 7C(1) places on judicial candidates’ speech. This resulted in a form of strict scrutiny analysis alien to modern free speech jurisprudence—one that could seep into other areas of First and Fourteenth Amendment law. As Justice Kennedy’s Williams-Yulee dissent warned, the Court’s tailoring analysis could greatly weaken the bulwark that strict scrutiny erects against government overreach.50

C. The Impact of Williams-Yulee: Early Evidence

At first glance, Williams-Yulee might seem like an aberration. After all, one might think that, as judges, the Justices are likely to be more concerned with maintaining the appearance of judicial integrity than of legislative or executive integrity.51 Indeed, the Court has made efforts to distinguish judicial elections from other elections. The Williams-Yulee majority opinion rejected comparisons to cases like Citizens United, arguing that politicians are expected to respond to their constituents’ desires, while judges must remain neutral.52 Ultimately, the Court said, states have a broader interest in preserving the appearance of judicial integrity than in preventing the appearance of legislative and executive corruption.53 The decision itself was tightly aligned to the specifics of regulating campaign finance in judicial elections. In this sense, Williams-Yulee looks like a mere doctrinal oddity.

But the case is not quite the outlier it appears to be. Justice Thomas, for instance, suggested (disapprovingly) that Williams-Yulee is part of a larger “tendency to relax purportedly higher standards of review for less-preferred rights.”54 Moreover, since many other areas of First and Fourteenth Amendment law employ versions of the strict scrutiny test, much of the Court’s analysis in Williams-Yulee could have ripple effects beyond free speech cases. For instance, the Court held that laws should not fail strict scrutiny simply because they do not restrict all relevant activity.55 At the same time, the Court held that even strict scrutiny allows states to regulate more activity than is necessary to accomplish their aims.56 These are general statements about how to conduct strict scrutiny analysis; they are not necessarily limited to a particular context.

It is therefore not surprising that Williams-Yulee’s weakening of strict scrutiny has already had an impact.This reasoning was felt most immediately in other judicial campaign finance cases. Several such cases cited Williams-Yulee in upholding a range of judicial ethics laws.57 Outside of this sphere, the D.C. Circuit, sitting en banc, made liberal use of the Williams-Yulee opinion to justify upholding the federal ban on political contributions from government contractors.58

Beyond campaign finance, the analysis in Williams-Yulee has also already begun to spread into other areas of First Amendment law. For instance, courts have utilized its holdings on under- and over-inclusiveness, as well as its reminder that some laws can survive strict scrutiny, in a variety of decisions. These decisions involve everything from commercial solicitation,59 to inspection regimes for child pornography,60 to noise prohibitions in an abortion buffer zone law,61 to certain forms of traffic offenses,62 to restrictions on doctors’ ability to ask whether their patients own firearms.63 This extensive use of Williams-Yulee demonstrates the case’s impact on the broader world of campaign finance—and general First and Fourteenth Amendment—jurisprudence. With a diluted strict scrutiny standard, states might gain greater leeway to impinge on a range of freedoms under both the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. This could weaken protections ranging from the right to marry to the right to vote.

ii. reimagining campaign finance as an election law issue

Williams-Yulee illustrates the need to rethink campaign finance jurisprudence. Since Buckley, the Court has subjected campaign finance restrictions to its pure freedom of speech and freedom of association doctrines.64 Yet the rest of election law doctrine has developed separately. Recognizing the need for government regulation of voting and ballot access systems, the Court adopted the Burdick sliding-scale approach to constitutional challenges. Section II.A discusses how campaign finance and election law diverged. Section II.B shows how the Burdick test works today. It then applies the Burdick test to Williams-Yulee to show how the test could change courts’ analyses in campaign finance cases. Section II.C then takes on the main theoretical objections to unifying election law doctrine.

A. The Free Speech/Election Law Divide

The Supreme Court’s approach to election law cases has changed significantly over the years. The Warren Court revolutionized many areas of election law, subjecting voting rights,65 ballot access,66 and redistricting67 regulations to First and Fourteenth Amendment analysis. In the process, the Court employed what today we would call strict scrutiny.68 Then, in the Burger Court years, the Justices began to pull back on the rights-protective decisions made in the 1960s. “It is very unlikely,” the Court said in Storer v. Brown, “that all or even a large portion of the state election laws would fail to pass muster under our cases.”69 It recognized that, “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.”70

In the 1980s and 1990s, the Court followed the logic of Storer and once again transformed its election law doctrine. In Anderson v. Celebrezze, the Court reaffirmed that states needed leeway to develop election regulations and determined that most “reasonable, nondiscriminatory restrictions” on the electoral process would pass constitutional muster.71 The Court therefore developed “a lenient balancing test” to analyze election regulations.72 Upon further refinement, this became today’s Burdick test.73

The Court has not followed this path in campaign finance cases. Instead, it has used the same rigid analysis since its seminal 1976 decision in Buckley v. Valeo.74 In Buckley, plaintiffs challenged Congress’s new campaign finance law, the Federal Election Campaign Act of 1971 (FECA), which placed limits on political contributions and expenditures.75 The Court of Appeals for the D.C. Circuit grounded its constitutional evaluation of FECA in the same need (and power) to regulate that the Supreme Court had identified in its other election law cases.76 However, the Supreme Court did not see it this way, instead conducting a pure First Amendment analysis.77

The Buckley Court saw campaign expenditure limits as direct restrictions on speech and association; it therefore subjected them to strict scrutiny.78 But because it viewed campaign contribution limits as a lesser infringement on these rights, the Court developed a less demanding standard: states must “demonstrate[] a sufficiently important interest and employ[] means closely drawn to avoid unnecessary abridgment of associational freedoms.”79 Using these tests, the Court found that Congress’s interest in preventing corruption and its appearance could sustain FECA’s contribution restrictions,80 but not the expenditure limits.81 The Court continues to employ the strict and closely drawn scrutiny tests in campaign finance cases today.82

It is clear that election law doctrine and campaign finance doctrine, both of which began as skeptical of government regulation, have diverged. Why they have diverged is less certain. Perhaps the Court simply never saw campaign finance as related to other electoral regulations.83 While we may see them all as part of a larger election law sphere today, election law was not a coherent field of study when the Court decided Buckley and created the Burdick test.84 Prior to the 1990s, scholars and courts alike treated election issues as straightforward extensions of the many constitutional law doctrines that applied to political regulations.85 The Court may not have had a theoretical architecture to connect campaign finance with voting rights and ballot access issues.

But why maintain the split now? It is most likely that the Court believes, as some scholars do, that government does not have the same structural interest in regulating campaign finance that it does for other aspects of the election process.86 Section II.C will address this assumption. Today, however, the judiciary now uses two forms of analysis: traditional First Amendment analysis in campaign finance cases, and the Burdick test in other election cases.

B. Applying the Burdick Test to Campaign Finance

To understand how the Burdick test would affect campaign finance cases, we must first understand how the Burdick test operates. Rather than use a “litmus test” to separate valid from invalid regulations, courts confronting election laws employ a more open-ended analysis.87 First, a court “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.’”88 The court then balances the burden against the state’s interests.89 As part of this inquiry, the court must examine the fit between those interests and the laws passed to further them.90 Under this “flexible standard,” severe burdens are subject to strict scrutiny, while lesser burdens receive lesser scrutiny.91 However, the test is essentially a sliding scale; regardless of how slight the burden on constitutional rights, the court must weigh the burden against the state’s interests.92

For a good example of the Burdick test, consider the Court’s decision in Buckley v. American Constitutional Law Foundation, Inc.93 In that case, Colorado had passed a number of restrictions regarding who could circulate petitions to put initiatives on the ballot.94 The Court acknowledged that petition circulation “is ‘core political speech,’ because it involves ‘interactive communication concerning political change.’”95 However, it also recognized the need for election regulation96 and therefore applied the Burdick test.97 The Court found that the regulations “significantly inhibit[ed] communication with voters about proposed political change.”98 It cited evidence from the district court record to show that the regulations severely limited the number of people able and willing to circulate petitions.99 The Court did not specify a level of scrutiny, instead asking “whether the State’s concerns warrant the reduction.”100 Ultimately, after examining these concerns, the Court determined that the regulations were “not warranted by” Colorado’s interests.101

The Court has used this same balancing test to examine a wide swath of election laws: voter ID requirements,102 prohibitions on fusion candidacies,103 bans on write-in voting,104 early filing deadlines for independent candidates,105 and laws that force parties to either open up primaries to non-party members106 or restrict them to those in the party.107 The Burdick test is thus the closest thing we have to a Grand Unified Theory of election law.

As both courts108 and scholars109 have pointed out, however, this unified framework does not encompass campaign finance. The reasoning of the Williams-Yulee decision was disappointing not only because it diluted strict scrutiny, but also because it missed a prime opportunity to subsume campaign finance doctrine into the Court’s broader election law doctrine. The main benefit of this move is that the Burdick test allows a court to consider the burden that a particular regulation places on First or Fourteenth Amendment rights before determining the level of scrutiny it will apply. Traditional First Amendment doctrine, on the other hand, tends to sort laws into one broad category or another (for example, content-based restrictions, speaker-based restrictions, or restrictions on speech in public forums110), each of which has a predefined level of scrutiny. The real discussion of how much a law burdens First Amendment rights—and sometimes even the fine-grained discussion of how a law burdens these rights—does not take place until the tailoring analysis, after the level of scrutiny has already been set and the government’s interest examined.111 Indeed, the whole purpose of the least-restrictive-means test in strict scrutiny cases is “to ensure that” protected activity “is restricted no further than necessary to achieve the goal.”112 The Burdick test, by contrast, allows courts to consider the law’s scope from the outset.

Using the Burdick test in Williams-Yulee would have freed the majority to invoke something less than strict scrutiny. As discussed in Part I, much of the Court’s tailoring analysis was actually an attempt to show how little the solicitation ban burdened judicial candidates’ speech.113 This parallels the Burdick test’s focus on the “magnitude” of the injury a law imposes.114 In particular, the Court asserted that what appeared to be major loopholes in Florida’s ban were actually attempts to focus as narrowly as possible on what the Florida legislature saw as the threat to public confidence in judicial integrity.115 Conversely, a complete ban on speaking or spending money—like the provision the Court confronted in Citizens United116—would impose a much heavier burden and thus would likely still be subject to strict scrutiny.

In addition to the “magnitude”­—or severity—of the burden, the Burdick test lets courts consider the “character”—or form—of the harm.117 The judicial canon at issue in Williams-Yulee focused solely on candidates’ solicitation of contributions, as opposed to supporters’ ability to give contributions118 or judicial candidates’ ability to announce their views on political issues.119 Moreover, the canon only affects candidates themselves, not their campaign committees.120 The law in Citizens United, by contrast, restricted the ability to make independent expenditures and singled out certain speakers(corporations) for unfavorable treatment.121 These distinctions matter in election law cases. Under Burdick, the Court might not have had to apply strict scrutiny in Williams-Yulee because of this earlier burden analysis.By contrast, current campaign finance doctrine puts off the consideration of these differences until after choosing a level of scrutiny.122

There are some indications that the Court might be open to switching to the Burdick test. In Nixon v. Shrink Missouri Government PAC, the Court told states that more common and plausible justifications for campaign contribution limits would require less evidentiary support.123 Then, in Randall v. Sorrell, the Court said that the dollar amount of a contribution limit must be examined for its “proportionality” to the state’s interests.124 Additionally, in Buckley v. Valeo and more recent cases, the Court has stated that the constitutionality of disclosure requirements depends on “the extent of the burden that they place on individual rights.”125 And there are more direct signals: Justices Breyer and Ginsburg have explicitly called for the Court to “balance[] interests,” rather than presume unconstitutionality, in campaign finance cases.126

The Williams-Yulee decision itself also showed hints, however faint, of moving in this direction. The majority often deferred to Florida’s judgments the same way it would with a typical election regulation. For instance, it accepted Florida’s stated interest in maintaining the appearance of judicial impartiality even though this interest “does not easily reduce to precise definition” or “lend itself to proof by documentary record.”127 This looks much like the Court’s voter ID cases, in which the Court has accepted states’ alleged interests in deterring voter fraud despite the lack of evidence that in-person voter fraud poses a real problem.128 If the Williams-Yulee Court had invoked the Burdick test, it likely would have given Florida a lower bar to meet. Instead, it wrote “a casebook guide to eviscerating strict scrutiny any time the Court encounters” activity “it dislikes”—in any area of First or Fourteenth Amendment law.129

Importing campaign finance into election law doctrine would not require a complete overhaul of the Court’s First Amendment precedents. Just as Anderson did not overturn the Warren Court’s election law cases that applied strict scrutiny, stare decisiscould keep most past campaign finance cases intact. But as the analysis of Williams-Yulee shows, and as the history of election regulation jurisprudence also illustrates,130 the gap between Burdick and across-the-board strict scrutiny could make a real difference in future cases.

C. The Counterargument: Campaign Finance as Individual Right

Despite the Court’s occasional moves toward a balancing test, it has resisted explicitly adopting the Burdick test. Indeed, the Court has suggested that Burdick applies only to laws that “control the mechanics of the electoral process,” and not to “regulation[s] of pure speech.”131 Though the Court has never directly addressed the use of the Burdick test in campaign finance cases,132 there are two main counterarguments to the idea of folding campaign finance into the Burdick framework. Justice Thomas has articulated the first, more practical objection: using the Burdick test would make little difference, according to him, because all “restrictions on core political speech so plainly impose a ‘severe burden.’”133 But the Court’s analysis in Williams-Yulee shows that burdens on speech are not always severe. Justice Thomas seems to think that political speech rights deserve the utmost constitutional protection, regardless of the magnitude of the intrusion.134 Though his concern is legitimate, cases like Williams-Yulee illustrate the danger of such an absolute rule.

There is also a more theoretical reason why some might wish to separate campaign finance from other election regulations. At its most fundamental level, campaign finance may seem less regulable than voting rights or ballot access. The Court created the Burdick test because, “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order . . . is to accompany the democratic processes.”135 A balancing test protects constitutional rights while still allowing the government to safeguard the integrity of its elections. One might argue, however, that Congress and the states do not have the same need to regulate campaign finance. After all, campaign contributions and expenditures fund the very discussion of public issues that is central to the First Amendment’s purpose.136 Moreover, states are perfectly capable of holding elections without campaign finance regulations; twelve states do not limit individual campaign contributions, and thirteen allow unlimited contributions from political action committees.137 As one scholar put it, “[e]lectoral mechanisms by their nature require government action,” while “expressive activity requires no government regulation outside the general rules of property, tort, and contract.”138 If one believes that the government has very little interest in regulating political speech, then the theoretical basis for using a balancing test disappears.139

But even this rationale does not hold up. The Buckley Court explicitly recognized that Congress has the power to regulate federal elections, including through campaign finance restrictions.140 More importantly, even the Roberts Court has accepted that the government has a compelling interest in regulating campaign finance.141 From Buckley onward, the Court’s decisions reflect the fact that campaign finance law is “an area in which the election domain and the domain of public discourse both have strong claims.”142 The government has a deep interest in regulating campaign finance to ensure the integrity of elections, just as it does with voting rights, political parties, or ballot access. “From a constitutional perspective,” then, “decisions about whether to structure the financing of elections are not so obviously different from other decisions that are currently far less controversial about how to structure elections.”143

Moreover, as mentioned above,144 there is some evidence from previous cases that the Court may have been willing to move toward a sliding-scale test for campaign finance laws in substance, even if it has refused to do so explicitly.145 First, the Court has applied the Burdick test to the very rights that it says campaign finance laws abridge. For instance, contribution limits primarily burden donors’ and candidates’ freedom of association,146 but the Burdick test is routinely applied to association claims.147 And, as Buckley v. American Constitutional Law Foundation shows, the Court has even been willing to apply the Burdick test to laws that regulate core political speech.148 Second, the Court has admitted that it has “subjected strictures on campaign-related speech that [it has] found less onerous to a lower level of scrutiny.”149 In theory, at least, the two-tiered scrutiny of campaign finance is already somewhat similar to the Burdick test, except that the Court determines the burdens imposed by an entire category of laws rather than focusing on the severity of the particular statute at issue.150

The Court has recently begun to grapple with this theoretical debate, as evidenced by the dueling opinions in McCutcheon v. FEC. In the plurality opinion, Chief Justice Roberts suggests that the First Amendment protects individuals against any collective interests that campaign finance laws might further.151 According to Chief Justice Roberts, the public interest in regulating campaigns must not “truncate th[e] tailoring test at the outset”;152 he therefore rejects any “ad hoc balancing of relative social costs and benefits.”153 In contrast, Justice Breyer’s dissent treats political speech as serving not just individual speakers’ rights, but also a broader public purpose: “seek[ing] to form a public opinion that can and will influence elected representatives.”154 Because campaign finance laws are rooted in the First Amendment’s core purpose—to “create a democracy responsive to the people”—they should be seen “as seeking in significant part to strengthen, rather than weaken, the First Amendment.”155 According to this vision of the First Amendment, the regulation of campaign finance is as necessary to the integrity of elections as the regulations the Burdick test was designed to protect.


Williams-Yulee was the result of two conflicting realities. Campaign finance regulations serve a vital purpose: protecting the integrity of our political system.156 Yet the Court has steadily ratcheted up its scrutiny of those regulations.157 Up to this point, this has not caused a problem. The Court has been quite willing to employ strict scrutiny because it has been happy to strike down most campaign finance regulations.158 But in Williams-Yulee, the Court finally reaped what it had sown: it confronted a regulation that was too important to strike down, but which existing jurisprudence suggested it had to subject to strict scrutiny.

Using the Burdick test, the Court could have avoided this problem. Even now, after Williams-Yulee, the Courtcan and should evaluate campaign finance laws under the Burdick framework. By examining the character and magnitude of the harm before applying a level of scrutiny, courts would have greater flexibility to account for the specific characteristics of different campaign finance restrictions. Instead, the Court has undermined its traditional free speech jurisprudence, giving governments a roadmap to defeating strict scrutiny across the board.

Williams-Yulee’s evisceration of strict scrutiny illustrates the benefits of switching to the Burdick test. It also highlights the potential dangers of letting campaign finance decisions drive the Court’s broader First and Fourteenth Amendment jurisprudence. Campaign finance cases involve legal considerations unique to the electoral domain and sometimes do not get the benefit of factual development in the lower courts.159 This increases the danger that the Court could announce rules in the campaign finance context that have unintended and destabilizing consequences in other First and Fourteenth Amendment areas. The Court should save campaign finance from First Amendment doctrine—and save First Amendment doctrine from campaign finance.