Law Commons^™

Political Law, Spencer A. Overton

GW Law Faculty Publications & Other Works

Traditional “election law” or “the law of democracy” concentrated largely on constitutional analysis by judicial actors. That narrow focus, however, distorted scholars’ understanding of the problems confronting democracy and possible solutions. This Foreword proposes that the field should be understood more properly as “political law,” which includes the study of the activities not only of judges but also of policymakers, regulators, and practitioners. The Foreword also examines the concept of “political law community”—a concentration of scholars, judges, policymakers, regulators, and practitioners interested in the subject that can give rise to innovation and creativity. Finally, the Foreword reviews the George Washington …

When Statutory Regimes Collide:Will Wisconsin Right To Life And Citizens United Invalidate Federal Tax Regulation Of Campaign Activity?, Miriam Galston

GW Law Faculty Publications & Other Works

In Federal Election Commission v. Wisconsin Right to Life (2007) and Citizens United v. Federal Elections Commission (2010), the United States Supreme Court dramatically reduced the ability of Congress to regulate campaign finance activities of corporations and others active in elections. Many of the same activities are still subject to restrictions by the Internal Revenue Code, which regulates the type and amount of political campaign activities that certain nonprofits exempt under federal tax law can engage in.

In the wake of the campaign finance decisions, the constitutionality of the tax law’s restrictions on campaign activity is now being challenged in …

The Donor Class: Campaign Finance, Democracy, And Participation, Spencer A. Overton

GW Law Faculty Publications & Other Works

This Article uses the U.S. Supreme Court's recent opinion in McConnell v. FEC to argue that the law should play a central role in reducing the impact of disparities in wealth on political participation. In upholding large parts of the Bipartisan Campaign Reform Act, the Court in McConnell acknowledged the adverse impact of concentrated wealth on widespread democratic participation and self-government. Even in the aftermath of the reforms upheld in McConnell, however, a small, wealthy and homogenous donor class continues to make relatively large contributions that fund the bulk of American politics. Less than one percent of the U.S. population …

Restraint And Responsibility: Judicial Review Of Campaign Reform, Spencer A. Overton

GW Law Faculty Publications & Other Works

The First Amendment doctrine governing campaign finance law allows judicial outcomes to turn on often unstated political assumptions about the appropriate role of money in campaigns. As illustrated by the conflicting opinions of different U.S. Supreme Court Justices in McConnell v. FEC, current narrow tailoring and substantial overbreadth tests provide inadequate guidance and compel judges to rely on their own political assumptions in balancing the need for regulation against the right of free speech. Judges skeptical of campaign reform err on the side of protecting speech, while judges supportive of reform lean toward tolerating regulations said to prevent corruption. To …

Racial Disparities And The Political Function Of Property, Spencer A. Overton

GW Law Faculty Publications & Other Works

Race theorists have noted that racial discrimination has shaped the existing distribution of economic resources, and have used this observation to justify reparations, to defend affirmative action, and to call for other legal changes that would improve the socioeconomic status of people of color. This Article takes the theorists' observation further. Property has a political function. Racially discriminatory allocation rules not only impose economic and social harms upon people of color, but also impair the ability of these people to engage in political expression and participation through structures such as the privately financed campaign finance system.

But Some Are More Equal: Race, Exclusion, And Campaign Finance, Spencer A. Overton

GW Law Faculty Publications & Other Works

Proposed campaign finance reforms and critiques of current campaign finance jurisprudence are incomplete because campaign finance reformers overlook social and historical realities related to race. This Article uses race as an analytical factor to develop a more comprehensive understanding of campaign finance. Past state-sanctioned discrimination has contributed to current racial disparities in property. Under the current campaign finance system, these disparities in property shape the racial distribution of political influence no less than poll taxes, literacy tests, or at-large electoral districts. Further, seemingly neutral campaign finance doctrine threatens to lead to future racial disparities in the political distribution of societal …