June 25, 2007

WRTL: Big Win for Campaign Finance Deregulation

Today's opinion is a major victory for those who oppose campaign finance regulation, and will likely lead to a new proliferation of corporate and union funded campaign ads in the 2008 election season. It has revealed the Roberts Court, as I have feared, as moving firmly into the deregulationist camp, with the Chief Justice and Justice Alito dressing up the opinion as a minimalist, incremental decision. My hope that Justice Kennedy's respect for stare decisis could save the corporate/union PAC requirement has been dashed. Here are a few observations:

1. In my writings on campaign finance, I have analogized the Supreme Court's campaign finance cases to the swing of a pendulum. We began with Buckley, which was a multi-authored schizophrenic opinion offering something (a ban on independent campaign expenditures by individuals) to those who believe that most campaign finance laws conflict with First Amendment rights of speech and association, and something else (upholding of campaign contribution limits) to those who believe that the government's interest in preventing corruption, insuring the integrity of the electoral process or promoting electoral equality (though the Buckley court itself eschewed that interest). The early post-Buckley cases, such as Bellotti, and NCPAC were deregulationist, and were followed by the period I've called the New Deference, where the four liberals on the Court, joined by Justice O'Connor, upheld a wide range of campaign finance laws, including major provisions of the McCain-Feingold law (the Bipartisan Campaign Finance Act, or BCRA) in a number of different cases. Last year's Randall decision showed Justice Breyer trying to salvage the campaign finance regime and prevent the Chief and Justice Alito from going to the deregulationist side. Today it is clear that those efforts have failed.

2. The Court today does not expressly overrule McConnell or Austin's holding that it is permissible to require corporations (and unions) to spend money on ads expressly advocating the election or defeat of a federal candidate (or "the functional equivalent of such ads") from a separate political action committee (or PAC) and not from general treasury funds. But the limit on corporate and union spending is now dead as a practical matter. The test that Roberts/Alito embrace is essentially the same, decontexutal see no evil approach of the lower court: if an ad can be viewed as not about electing a candidate (and instead about an issue), it must be viewed that way and exempt from the PAC requirement. Nothing makes the point better of how far this test goes to bar regulation of ads than the Chief's footnote 7:

    JUSTICE SCALIA thinks our test impermissibly vague. See post, at 11-12 (opinion concurring in part and concurring in judgment). As should be evident, we agree with JUSTICE SCALIA on the imperative for clarity in this area; that is why our test affords protection unless an ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. It is why we emphasize that (1) there can be no free-ranging intent-and-effect test; (2) there generally should be no discovery or inquiry into the sort of "contextual" factors highlighted by the FEC and intervenors; (3) discussion of issues cannot be banned merely because the issues might be relevant to an election; and (4) in a debatable case, the tie is resolved in favor of protecting speech. And keep in mind this test is only triggered if the speech meets the brightline requirements of BCRA s 203 in the first place. JUSTICE SCALIA's criticism of our test is all the more confusing because he accepts WRTL's proposed three-prong test as "clear." Post, at 17. We do not think our test any vaguer than WRTL's, and it is more protective of political speech.
(original emphasis)

3. Justice Alito in his concurrence says explicitly that even this test may not be sufficiently protective of speech, and he'd entertain a full facial challenge to BCRA. I have little doubt Chief Justice Roberts will go there eventually as well. But today he is able to achieve almost as good a result for the deregulationist side, without making headlines that the Court, by a 5-4 vote, has overruled one of its precedents from only a few years ago, thanks to the departure of Justice O'Connor. But we should not be fooled--for practical purposes, this is going to let corporations and unions spend vast sums on election-related advertising in 2008.

4. In earlier cases, Justice Kennedy had been somewhat hesitant about joining the full deregulationist position of Justices Scalia and Thomas. Now, I think he's likely on board as well with the full overruling of Buckley. While there might be some question over the constitutionality of some contribution limits, the main difference among the five conservative Justices will likely come over disclosure. As of now, only Justice Thomas has taken a strong anti-disclosure position.

5. What's next? Expect a full, frontal attack on McConnell, likely manufactured by Jim Bopp, as invited by Justice Alito (not to mention Scalia, Kennedy, and Thomas). Within a few years, expect the Court to take another campaign contributions case, revisit Randall, and reconsider whether even higher contribution limits violate the First Amendment.

Posted by Rick Hasen at June 25, 2007 09:18 AM