"Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life"

I have posted this new draft on SSRN, and I'll be presenting this paper at APSA at the end of August. This is still a work in progress; comments welcome! Here is the abstract:

With the replacement of Chief Justice Rehnquist and Justice O'Connor with Chief Justice Roberts and Justice Alito, the pendulum has swung sharply away from Supreme Court deference to campaign finance regulation toward perhaps the greatest period of deregulation we will have witnessed since before Congress passed the important 1974 amendments to the Federal Election Campaign Act. In 2006, in Randall v. Sorrell, the Court for the first time struck down individual contribution limits in candidate elections as too low. In 2007's Federal Election Commission v. Wisconsin Right to Life ("WRTL"), the Court mostly eviscerated a key aspect of the McCain-Feingold law limiting corporate and union spending in federal elections. More importantly, a new Court majority has signaled its receptivity to many more challenges to campaign finance laws.

As Part I of this Article explains, as a matter of jurisprudence the Roberts Court's new approach to campaign finance regulation is just as incoherent as the prior New Deference approach, though moving in a decidedly different ideological direction. Likely in an effort to appear "moderate" or "minimalist," Chief Justice Roberts and Justice Alito have made their deregulatory moves without expressly overturning existing precedent, leading Justice Scalia in WRTL to descry Chief Justice Roberts' and Justice Alito's "faux judicial restraint," which Justice Scalia says "obfuscat[es]" the Court's sub silentio overruling of precedent. Justice Scalia is right (if impolitely blunt): given Chief Justice Roberts' and Justice Alito's views of the First Amendment and campaign finance regulation, there is no jurisprudential reason (though there were political reasons) for the two newest Justices not to join Justice Scalia's concurring opinion expressly calling for overruling of the precedent of deference.

As Part II details, however, the lack of jurisprudential consistency described in Part I will be inconsequential for the politics on the ground. Beyond incoherence, the WRTL principal opinion removes effective limits on corporate and union spending from their general treasury funds in elections. The only ads that may not be paid for with such funds are those that expressly advocate the election or defeat of candidates for office and those that are "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." There are debatable issues around the edges of interpreting this new test, but those disagreements are likely to be mostly of interest to academics and to those who will deliberately craft advertisements to further push the development of deregulatory jurisprudence. The new test will not pose a formidable obstacle for those corporations and unions that wish to run ads to influence elections. As a result, we could well see a significant rise in corporate election-related spending.

Finally, Part III looks at the next likely challenges to campaign finance regulation, and how the Roberts Court is likely to address them. Though the Roberts Court's faux "minimalist" approach allows for some variation in how lower courts will address campaign finance challenges in the near term, the lower courts' pre-McConnell experience demonstrates that many courts are likely to strike down ever more campaign finance regulations on First Amendment grounds. Those few appellate courts that uphold such laws likely will face Supreme Court reversal. I expect to see challenges to laws that have been upheld by the Supreme Court in the past, such as the ban on corporate and union spending from treasury on "express advocacy," the McCain-Feingold ban on contributing "soft money" to political parties, federal individual campaign contribution limit, and laws requiring disclosure of electioneering communications. I also expect to see challenges to laws that the Supreme Court has not directly addressed, such as a challenge to the constitutionality of contribution limits to independent expenditure committees and "527" organizations. I believe many of these challenges will succeed.

Posted by Rick Hasen at July 31, 2007 07:44 AM