Decline and Fall? The Roberts Court and the Challenges to Campaign Finance Law

The Supreme Court has had a major impact on the development of campaign finance law. Court decisions have barred most expenditure limits, upheld contribution restrictions and disclosure requirements, and limited the kinds of electoral ads that can be subject to regulation. In the McConnell decision in 2003 the Court demonstrated a greater openness to campaign finance regulation when it upheld McCain-Feingold’s soft money and issue advocacy restrictions. Since McConnell, however, the composition of the Court has changed, and in two decisions in the past two years, the new majority has been much more hostile to campaign finance limits. In particular, last year’s WRTL decision significantly eroded McConnell’s issue advocacy holding and opened the door to considerably more corporate and union spending in elections. Three new cases are currently moving through the judicial system, with one soon to be argued before the Supreme Court, a second pending there, and a third in the early stages of litigation. These cases have implications for contribution limits, public funding, and the fundraising restrictions and disclosure requirements that apply to independent committees. Their resolution will shape the effectiveness of current campaign law and signal the direction of the Roberts’ Court’s emerging campaign finance jurisprudence. ∗Richard Briffault is Joseph P. Chamberlain Professor of Legislation at Columbia Law School. For more than three decades, the Supreme Court has played a central role in shaping campaign finance. In the seminal Buckley v. Valeo decision, the Court held that campaign finance laws implicate the freedoms of speech and of association protected by the First Amendment. The Court determined that one regulatory technique – expenditure limitation -is unconstitutional, but it upheld others, including contribution limits, reporting and disclosure requirements, and the provision of public funds to candidates. The Court found that burdens on constitutional rights can be justified, by laws that are narrowly tailored to promote such important government interests as preventing corruption or the appearance of corruption and increasing voter information. But it also held that advancing political equality cannot justify limits on campaign spending. The Supreme Court’s doctrines on campaign finance are marked by difficult distinctions. Contributions to candidates have been held to raise the danger of corruption, but individuals and groups may spend without limit to support or oppose a candidate, provided they do so independently of that candidate. Candidates who accept public funds can be required to accept spending limits, but independent expenditures by individuals and organizations supporting or opposing publicly funded candidates cannot be limited. Party contributions to candidates, as well as expenditures coordinated with candidates, can be limited, but party expenditures independent of its candidates cannot—even though the concept of independent party expenditures would surprise most observers. Corporations and unions cannot be barred from spending their treasury funds in ballot proposition elections, but they can be prohibited from spending treasury money in candidate elections. However, ideological corporations that do not engage in commercial activities or take money from business corporations or unions may not be so limited. The Court’s decisions have constrained the scope of campaign finance regulation as well as the types of regulatory techniques. Many individuals, organizations, and groups engage in a broad range of political activities: electioneering, legislative and grass-roots lobbying, and public education programs. The Court has held that campaign finance restrictions can be applied only to electoral activities and not to other, non-electoral, political activities. As a result, campaign finance law requires a sharp distinction between elections and politics, though this elections/politics line remains elusive at best. In particular, the distinction drawn by the Court in Buckley has been criticized for failing to map effectively on to the real world of electoral politics, as well as for permitting a considerable amount of electoral activity to evade regulation. Buckley narrowed the federal disclosure requirement for non-party political committees to communications that expressly call for the election or defeat of clearly identified federal candidates. Ads that lacked the so-called “magic words” 1 424 U.S. 1 (1976). 1 Briffault: Decline and Fall? Published by The Berkeley Electronic Press, 2008 of “express advocacy” became known as “issue advocacy”—although they need not include the discussion of any issues—and were exempted from regulation. The Court subsequently extended the express advocacy/issue advocacy distinction to the ban on expenditures from corporate and union treasuries. As the rise of issue advocacy advertising demonstrated in the 1980s and 1990s, the express advocacy test enabled most political advertising by non-candidates and non-party groups to escape regulation. At the start of the current decade, the Court took a surprisingly and significantly pro-regulatory turn. In four cases in a row, the Court upheld campaign finance laws, including state laws tightening dollar limits on contributions and banning all contributions by corporations; federal limits on party coordinated expenditures; and most significantly, in McConnell v. FEC, in 2003, the soft money and issue-advocacy provisions (and many of the other components) of the Bipartisan Campaign Reform Act of 2002 (“BCRA”), generally known as the McCain-Feingold law. McConnell enabled these new restrictions to take effect in the 2004 election. With the appointment of Chief Justice Roberts in 2005 and, especially, the replacement of Justice O’Connor by Justice Alito in 2006, the Court has become more hostile to campaign finance regulation. In 2006, in Randall v. Sorrell, the Court tightened its review of contribution limits, striking down limits Vermont had imposed for state and local elections. In 2007 in Federal Election Commission v. Wisconsin Right to Life, Inc.(“WRTL”), the Court eviscerated restrictions on the use of corporate and union treasury funds to pay for electioneering expenditures, restrictions which it had only just sustained in McConnell. The tenor of the opinions of the newly emerging majority suggests that more dramatic changes to campaign finance doctrine may be coming. There are three potentially significant cases on campaign finance currently working their way through the judicial system—one set to be argued before the Supreme Court in late April, one pending before the Court as of mid-March, and one just beginning its journey through the federal courts. These cases deal with two provisions of BCRA and one federal measure that dates back to the Federal Election Campaign Act of 1974. These cases could provide the Court the opportunity to make further changes in the campaign finance system, with implications for contribution limits, public funding, and, especially, fundraising and disclosure by independent organizations. Decisions could come as early as the current election cycle, although some cases may not be resolved until much later. Depending on how these cases come out, campaign finance law could become even more complex, and Congress and state and local governments may become 2 126 S.Ct. 2479 (2006). 3 127 S.Ct. 2652 (2007). 2 The Forum Vol. 6 [2008], No. 1, Article 4 http://www.bepress.com/forum/vol6/iss1/art4 even more constrained in the goals they can pursue and the techniques they can adopt.