Campaign Finance after Mccain-feingold When “the Pols Make the Calls”: Mcconnell’s Theory of Judicial Deference in the Twilight of Buckley

This Article analyzes the component parts of “judicial deference” as set out in McConnell v. Federal Election Commission, and assesses their interrelationship and persuasiveness. Part I locates McConnell within the history of struggles over the proper role of courts and legislatures in the constitutional design and oversight of campaign finance controls. It attempts to show how the Court could not settle on a consistent account of its role, or Congress’s, in the application of the rationale in Buckley v. Valeo for controlling campaign finance. With the advent of McConnell, the Court seeks to construct a way out for itself, built around Congressional “expertise” in striking the required constitutional balance. Part II more fully evaluates the theory of judicial deference articulated by the McConnell Court, with particular reference to the Court’s uses of: 1) history; 2) the notion of legislative “expertise;” 3) appeals to “political realities;” and 4) Congress’s imperative need, in light of those realities, to address actual or predicted circumvention. This construction of deference suffers from an internal conflict that eventually undermines its persuasiveness: it functions as an escape from the rigors of Buckley, but at the same time Buckley, and more specifically the assumed exclusivity of the corruption rationale, defines its theoretical limits. The Court must ground its justification of defer-