Did WRTL KO BCRA?

Today, former FEC chairman Smith and Brookings Institution fellow Mann discuss real or perceived dangers to the McCain-Feingold law. Yesterday they assessed the quality of the court’s ruling. Later this week, they’ll debate alternate methods of finance reform, matching funds and more.

Sadly, no
By Bradley Smith

Tom,

Federal Election Commission v. Wisconsin Right to Life (WRTL) merely crafts an as-applied exception—albeit a meaningful one—to one part of the McCain-Feingold law, which itself amends the more extensive Federal Election Campaign Act. So in the most basic sense, the obvious answer is “no,” WRTL does not signal the end of campaign finance laws — the extensive web of regulation remains intact.

What reformers fear is that the decision portends greater things to come. In a series of decisions upholding laws early this decade, the Supreme Court majority endorsed a “heroic” history of campaign finance regulation, in which selfless legislators courageously battle special interests in an effort to “perfect” the electoral system. In WRTL, however, the Court returned to a more appropriately skeptical view of government regulation of speech.

Justices Antonin Scalia and Clarence Thomas have long argued for striking the entire law, but in WRTL the more cautious Justice Anthony Kennedy joined them to call for overturning the provision at issue in its entirety. Though Chief Justice John Roberts and Justice Samuel Alito refused to go that far, the chief’s controlling opinion marks a return to the skepticism of government speech regulation that marked earlier decisions such as Buckley v. Valeo and Bellotti v. First National Bank of Boston. The chief is critical of the supposed empirical basis for the regulation, applies “strict scrutiny” to the regulation at issue, and states that when in doubt, the Court must side with the speaker, not with the government. He also rejects a fundamental rationale of the McCain-Feingold Bipartisan Campaign Reform Act, that government may suppress speech that does not directly threaten any compelling government interest in order to prevent “circumvention” of the law, declaring, in the opinion’s most memorable line, “Enough is enough.” Throw in a brief concurrence by Justice Alito suggesting that the Court may look favorably on future challenges, plus the 6-3 decision last year in Randall v. Sorrell, striking down Vermont’s spending limits and low contribution limits, and the trepidation in pro-regulatory circles is understandable.

Understandable but, unfortunately, unjustified. Ever since the 1976 Buckley decision, which can be crudely summarized as holding that the government can regulate some campaign speech, but not too much, the court has struggled to find a stable median. The court has never decided a major point of campaign finance law on a unanimous vote, and 5-4 decisions are common. With shifting court majorities, decisions have been more protective of free speech, then more deferential to government regulation and back again. Neither point of view has ever gained a complete victory—the closest either side has come was McConnell v. FEC in 2003, upholding most of McCain-Feingold. But that decision was 5-4, and the majority opinion so poorly reasoned that even many scholars who applauded the result cringed at the Court’s facile justification. Now, by a different 5-4 majority, the Court is trimming back a bit. The correction is welcome, but I doubt that we will see the end of campaign speech regulation anytime soon.

Bradley Smith served as commissioner on the Federal Election Commission from 2000 to 2005, and as chairman of the commission in 2004. Currently professor of law at Capital University Law School in Columbus, Ohio, and chairman of the Center for Competitive Politics, he is the author of Unfree Speech: The Folly of Campaign Finance Reform (Princeton University Press 2001).

Careful, you may get what you wish for
By Thomas E. Mann

Brad,

First a brief note on your portrayal yesterday of the “actual facts” of the case. He neglects to mention that the Wisconsin Right to Life group apparently never had occasion before the enactment of McCain-Feingold to run and finance broadcast ads that fell into the net of electioneering communications; that the group used non-broadcast media when multiple cloture votes were taken on judicial nominees in the Senate and only switched to radio and TV ads when they fell within the statutory electioneering period and the Senate was in recess; and Wisconsin Right to Life ran no broadcast ads after the election in early 2005 when the filibuster controversy reached its peak and other groups spent more than $8.5 million on ads related to the issue. Sure looks like a manufactured “lobbying” case to me.

By itself FEC v. WRTL does not reverse most of the campaign finance laws and regulations that are on the books. The party soft money pillar of McCain-Feingold remains in place as does the formal structure of its “issue ads” section. Contribution limits and disclosure requirements continue undisturbed by the ruling. In this narrow sense, I agree with Brad. But Justice Alito has invited a broader challenge to the electioneering communications provision of the law. (Will anyone be surprised when another James Bopp case reaches the court?) Both Alito and the chief justice appear philosophically disposed to overturn it. How much and for how long will they be constrained by incrementalism? Moreover, they may soon confront a legal morass as lower courts confront the difficulty of administering the vague and subjective test WRTL set for as-applied exemptions.

Moreover, the chief justice’s language in WRTL suggests that he believes that First Amendment speech rights of corporations are as compelling and non-negotiable as those of individuals. That is a significant change in jurisprudence (overruling the 1990 Austin decision in all but name) and could presage a wholesale reversal of campaign finance law. I suspect a frontal challenge to Austin is already in the works.

Finally, the court’s opinions in WRTL make clear there are now three justices (Kennedy, Scalia and Thomas) ready to overrule Buckley and the entire edifice of campaign finance law going back as far as 1907. My sense is that Alito and Roberts would be happy to join them but feel constrained from moving too quickly by their confirmation hearing statements on stare decisis. Brad, you may be giddy about the prospect of a deregulated world of campaign finance (what I call a state of nature), but you’re understandably cautious about forecasting such a dramatic shift. After all, achieving one’s fondest hopes oftentimes proves problematic. It could presage a political counter-revolution whose achievements you find much less satisfying.

Thomas E. Mann, the W. Averell Harriman chair and senior fellow ingovernance studies at The Brookings Institution, was an expert witnessin the constitutional defense of the McCain-Feingold campaign financelaw. He is co-author of The New Campaign Finance Sourcebook and TheBroken Branch.