Scrutinizing Independent Expenditure Limits: A Case Against Super-Strict Scrutiny

Abstract Although Buckley v. Valeo purported to subject both contribution and independent expenditure limits to “exacting” scrutiny, contribution limits have since been subjected to a lower level of scrutiny than independent expenditure limits. Contribution limits survive if closely drawn to match a “sufficiently important” government interest. Meanwhile, limits on independent expenditures must be narrowly tailored to a “compelling” government interest. The Court has insisted that the only government interest important enough to justify limits on big money is the prevention of corruption or its appearance, and that, while contribution limits are justified by this interest, independent expenditure limits are not. By holding there is no good reason to limit what individuals can spend on elections, the Court has subjected independent expenditure limits to something more like super-strict scrutiny, condemning them to a strong presumption of unconstitutionality regardless of how high the limit. This article ma...