Responding to my post here, Bob Bauer here says that he has not misunderstood McConnell but rather I misread his initial comments. I don’t think I have. Bob ended his original post with the following: “Courts in the future will face the choice made by the Anderson Court: will they follow Buckley, or McConnell?”
In his follow-up, Bob suggests that courts will have to make this choice because McConnell was “disingen[uous]” about what Buckley stood for. Although I don’t necessarily agree with that label, I agree and have written a long piece (which Bob alludes to) pointing to various places in the McConnell opinion where the Court feigns adherence to Buckley but is really doing something else.
But that’s not the point. McConnell is not only the Supreme Court’s most recent case on the constitutionality of various campaign finance regulations. It also now provides the current definitive view of what Buckley means. So now that the McConnell Court has clearly and unequivocally said that the line between express advocacy and issue advocacy has no constitutional significance, lower courts are bound to follow that, even if the McConnell Court may have been disingenuous in claiming that its holding stemmed from a “plain reading” of Buckley.