New Court May Take Aim at Campaign Finance Laws, BeVier Says

February 12, 2007

Prof. Lillian BeVierCampaign finance laws may face a fresh challenge in a Supreme Court newly staffed with Chief Justice John Roberts and Justice Samuel Alito, said Professor Lillian BeVier at a Federalist Society lunch lecture Feb. 5. The Court has agreed to hear Federal Election Commission v. Wisconsin Right to Life, Inc., in which the FEC is protesting the advocacy group's right to air a television ad championing a contentious political issue within 60 days of a federal general election. Oral arguments are set for April 25.

The ban on such "electioneering" communications, part of the McCain-Feingold campaign finance reform legislation passed in 2002, in fact helps incumbents who don't want to be challenged on difficult issues within days of an election or primary, BeVier said — in effect stifling free speech.

"Incumbent legislators who passed McCain-Feingold were very aware of the incumbent-protective effects of passing the electioneering ban," BeVier said.

BeVier outlined the history of the legal debate over campaign finance, starting with Buckley v. Vallejo (1976), in which the Supreme Court affirmed the right of Congress to limit individual campaign donations "because they're only proxy speech, they're not really speech." In the same decision the Court ruled that Congress could not limit candidates' expenditures because the right was protected by the First Amendment.

The resulting "Buckley framework," as the decision's parameters were called, went unchallenged for years. Politicians adapted by funneling soft money — individual, unregulated contributions — to states or political parties instead of specific candidates. At the same time, corporations and unions began to exploit a loophole in campaign finance law by spending money on issue ads — such as those addressing abortion — that mentioned the candidates by name and, in the context of the campaign, could influence votes. The practice "just drove incumbents crazy," BeVier said. McCain-Feingold prohibited such "electioneering" funded by corporations or unions within 30 days of a federal primary or 60 days of a federal election.

When the legislation passed, "It was a pretty broadly held view that the prohibition on electioneering commercials was unconstitutional," BeVier explained, and most legislators thought it soon would be struck down by the courts. "But pass muster it did" in McConnell v. Federal Election Commission, which sustained McCain-Feingold by a 5-4 majority, with Justice Sandra Day O'Connor providing the key vote.

The public saw a preview of how the new justices may feel on campaign finance and the First Amendment last October with the Randall v. Sorrell decision. The case involved draconian campaign finance measures instituted by Vermont — including a very low contribution limit. Notably, it was the first time the Court decided a contribution limit was too low; the court also reaffirmed that spending limits were unconstitutional. Justice Stephen Breyer, who had joined the majority in McConnell, wrote the 6-3 opinion for the Court. BeVier explained Breyer decided in this case that democracy was better served without severe limits on contributions. Surprisingly, Alito and Roberts joined Breyer's opinion, despite the fact that Thomas wrote a "much more principled" opinion, BeVier said. Scalia and Kennedy also wrote separate opinions. Alito and Roberts "hid behind Justice Breyer" in this case, BeVier charged, which makes the Wisconsin Right to Life (WRTL) case that the Court just agreed to review more of a question mark.

WRTL first came to the Supreme Court in 2006 as a question on whether McConnell allowed "as-applied" challenges to McCain-Feingold's prohibitions on corporate funding of political advertisements. The unanimous Court ruled that the lower court had misinterpreted a footnote thought to foreclose such challenges, and asked the court to consider whether the ads were constitutional.

Wisconsin presents justices with an opportunity to gut federal election rules regarding electioneering communications or to overrule portions of McConnell, BeVier said. In McConnell, dissenting opinions about the electioneering prohibitions addressed only the idea that any ban was bad. It's possible that Wisconsin Right to Life could be considered exempt from electioneering laws because they are an advocacy group and not a corporation or union. The group is arguing that all corporations, not just advocacy groups, should be exempt from expenditure limits for grassroots lobbying.

Wisconsin Right to Life ran ads in 2004 that complained about the filibuster of judicial nominees who couldn't get an up-down vote in the Senate. The ad suggested citizens contact their two Wisconsin senators to let them know their opinion. Wisconsin Right to Life argued that the ad doesn't talk about the election; the FEC retorted that the context of the ad within the campaign mattered.

"It's fairly clear that there was a purpose to get the conservatives to worry about Sen. Feingold," BeVier said. The district court did not agree that the purpose of the ad was what mattered — only the ad's literal terms did. The Supreme Court will decide the case this term.

BeVier said five current justices were at least "inclined to be suspicious" of the electioneering ban's constitutionality. But "Chief Justice Roberts is a cautious person" who has said he will decide one case at a time and is not inclined to overrule precedents. On the other hand, BeVier pointed out, the McConnell decision is only three years old.

"[Congress knows] what speech needs to be stopped in order to keep them in office," she said. "Should we defer to the legislature because they know or should we not defer because they know?"

BeVier pointed out that the media has an exception from the electioneering ban. Without that exception, the law would have never passed, she argued. The electioneering ban and its effects on the First Amendment is "not part of the common debate because of the media exception."

With technology changing traditional forms of media, BeVier suggested the Internet would further transform the debate. Thus far, the FEC has allowed individual speech like that on YouTube as long as it's not corporation-sponsored.

"It's very hard to make the kind of confident predictions people have made before," about the effects of campaign finance laws, she said. "There have been so many unintended consequences." Experts predicted that the 2002 campaign finance laws would shift power back to the people and throughout the country, a revolution that failed to materialize.

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