This essay examines the validity, in light of new empirical research, of the free speech theory the U.S. Supreme Court uses to justify the doctrines it currently employs to assess the constitutionality of campaign finance regulations. The Court’s model, which Professor McDonald terms the theory of 'stimulated democratic deliberation,' assumes that an unlimited quantity of campaign-related communications will result in increased public deliberation about ideas and better informed citizens, which in turn will result in better decisions about candidates for political office. In short, this model assumes that rational thought and deliberation about important issues of the day drive voter decision-making. McDonald examines new research by neuroscientists, political psychologists and political scientists which suggests that this model is neither an accurate description of the nature of campaign-related communications nor their affect on average voters. These studies conclude that human emotion, and not reason, plays the dominant role in voter decision-making, and that political strategists are increasingly taking advantage of such findings to target and manipulate voter decisions with emotional appeals contained in political advertising. McDonald argues that the Court should update its theoretical model to more accurately reflect these realities, which in turn would warrant doctrinal modifications to give the government greater constitutional latitude to impose reasonable campaign finance regulations.
Barry P. McDonald
Campaign Finance Regulation and the Marketplace of Emotions,
36 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol36/iss2/7