When Congress enacted the Federal Election Campaign Act of 1971 (FECA) and the Amendments of 1974 and 1976, it anticipated intense constitutional scrutiny of that legislation. It therefore attempted to pro-vide a procedural mechanism within the framework of the FECA to simplify and expedite the resolution of constitutional challenges. Congress’ prediction that the various pieces of federal election legislation would be plagued with challenges based on constitutional grounds was correct. Congress was mistaken, however, in believing its legislation would provide simple, expeditious, and manageable procedures. On the contrary, the labyrinth of procedural requirements established by Congress and the Federal Election Commission (FEC) has frustrated constitutional challenges. The repercussions of that fact are particularly significant. Some of the restrictions of the FECA infringe upon the first amendment rights of free speech and association, and procedural inadequacies in the FECA and related legislation may hinder review and vindication of those rights. In addition, the practical impact of this procedural maze is to require greater skill and care on the part of lawyers. Lawyers must do more than merely insure that the substantive requirements of the federal election laws have been satisfied. Lawyers are now forced to assume a strategic role; where constitutional issues are raised, the procedural obstacles must be anticipated and dealt with.
This Article will examine the various procedural mechanisms presently established. The inherent problems of these procedural devices will be discussed in the context of three challenges brought by the campaigns in the 1980 presidential election. Finally, the Article offers several recommendations for legislative and judicial action to prevent procedural defects from thwarting the vindication of constitutionally protected rights.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.