TITLE

BETWEEN ACCESS AND INFLUENCE: BUILDING A RECORD FOR THE NEXT COURT

AUTHOR(S)
STRAUSE, RENATA E. B.; TOKAJI, DANIEL P.
PUB. DATE
January 2014
SOURCE
Duke Journal of Constitutional Law & Public Policy;2014, Vol. 9 Issue 1, p179
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
This Article considers the evidence that should be collected and developed to support the next generation of reforms before a future Supreme Court. It discusses but ultimately sidesteps theoretical debates over rationales for reform, focusing instead on the practical questions likely to face future policymakers, lawyers, and expert witnesses. Drilling down into the ample evidentiary record in McConnell v. Federal Election Commission, we address the types of evidence that should be amassed by supporters of future regulation. This evidentiary record, we suggest, will be essential in both formulating the next generation of campaign finance reform and in defending it in court. We argue that, regardless of whether one favors an anti-corruption or egalitarian rationale for regulation, the evidentiary record should focus on conflicts of interest—in particular, on whether a reasonable legislator would feel pressure to act in way that is different from the preferences of her constituents or the public interest. This is something more than a showing of unequal access, but something less than a showing of actual influence on policymaking. In the near term, our suggestions are designed to help define a research agenda for qualitative and quantitative empirical researchers. In the long term, they offer a roadmap for the legislators shaping and the lawyers defending future regulations before a Supreme Court less reflexively antagonistic to reform than the current one.
ACCESSION #
100531108

 

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