Ciara Torres-Spelliscy (Stetson University - College of Law) has posted The Democracy We Left Behind in Greece and McCutcheon on SSRN. Here is the abstract:
The U.S. Supreme Court used to regularly police the line between political and economic spheres and the line between Church and State. The Court in 2014 abandoned both posts. As evidenced by McCutcheon v. FEC, the Supreme Court is not protecting democracy from creeping oligarchy served up one campaign contribution at a time. As evidenced by Town of Greece v. Galloway, the Supreme Court is not protecting democracy from creeping theocracy served up one public prayer at a time. In both areas of First Amendment law (Free Speech and Establishment Clause), the Court feigns neutrality when it is really picking sides and the side that the Court picks is the one that already has the most power. This short essay will explore how the modern Court’s Establishment Clause jurisprudence parallels its campaign finance jurisprudence and how both have the potential to create a privileged class and a second class.