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Legacy Content / RULES OF THE GAME

Campaign Finance Laws Under Siege

In A Series Of Recent Cases, The Roberts Court Has Favored Deregulation

July 28, 2008

When the Supreme Court threw out an obscure campaign finance regulation involving wealthy, self-financed candidates, reform advocates played down the ruling's significance.

The so-called Millionaires' Amendment had never been central to the Bipartisan Campaign Reform Act of 2002, assured Sen. Russell Feingold, D-Wis., who wrote that law with John McCain. The amendment had raised contribution limits for any candidate facing a self-financed opponent with deep pockets, but the court found that unconstitutional. Pro-reform activists declared that the ruling was disappointing but not surprising, or even particularly significant.

But the high court's 5-4 vote in Davis v. Federal Election Commission [PDF] on June 26 could resonate broadly. Some political scientists say the ruling threatens public financing rules at the state level. Others see trouble ahead for the existing campaign finance regime now that the Supreme Court boasts a solid majority of five justices more enamored with the First Amendment than with restrictive election laws.

 

"We could well be looking at a situation where the only campaign finance laws that are constitutional are disclosure laws and voluntary public financing systems."
--Richard L. Hasen, Loyola Law School

The Davis ruling was the third straight Supreme Court victory for pro-First Amendment conservative activists, who have mounted a series of legal challenges that have systematically chipped away at both the BCRA and the post-Watergate law known as the Federal Election Campaign Act.

The ruling came on the heels of another Supreme Court finding last year that rolled back campaign finance limits on unregulated "issue" ads that picture or name a candidate on the eve of an election. The BCRA, also known as the McCain-Feingold law, had barred corporations and unions from using treasury funds to pay for such ads. But in Federal Election Commission v. Wisconsin Right to Life [PDF], the Supreme Court rejected those limits as unconstitutional.

The Wisconsin ruling opened "a fairly sizable loophole" in the McCain-Feingold law, said Paul S. Ryan, an attorney for the Campaign Legal Center.

The high court upheld the McCain-Feingold law, which also banned soft (unregulated) money raised and spent by parties and candidates, in its landmark McConnell v. FEC ruling in 2003. But since then, Justice Sandra Day O'Connor, who had been a swing vote in campaign finance cases, has retired. Her replacement by Justice Samuel Alito, who joined fellow Bush appointee Chief Justice John Roberts, has changed the complexion of the court.

The Wisconsin Right to Life ruling "is consistent with the pattern of the Roberts court of chipping away at these restrictions without explicitly stating that it's overruling prior decisions," Ryan noted. The first campaign finance case that the high court decided under Roberts was Randall v. Sorrell [PDF], which in 2006 struck down Vermont's unusually low contribution limits as unconstitutional.

Ryan, in fact, argues that the Davis ruling's implications have been exaggerated. "I don't think it has very direct application to the existing public financing laws," he said.

But others are not so sanguine. The Supreme Court under Roberts "is going firmly in the direction of deregulation," said Loyola Law School professor Richard L. Hasen. Under this court, Hasen argues, restrictions that are now central to the campaign finance system -- the contribution limits and the ban on direct corporate and union election spending -- could be vulnerable to challenge.

Down the road, Hasen warned, "we could well be looking at a situation where the only campaign finance laws that are constitutional are disclosure laws and voluntary public financing systems."

At least three more significant election law challenges are in the pipeline and wending their way to the high court. These include Citizens United v. FEC, which challenges the McCain-Feingold law's disclosure requirement for groups that engage in so-called electioneering communications. Citizens United wanted to distribute and advertise a movie critical of Hillary Rodham Clinton without disclosing its donors. The group is now advertising an anti-Barack Obama film.

Another federal lawsuit [PDF] has been brought by SpeechNow.org, which challenges a provision in the 1970s-era FECA requiring independent groups that expressly advocate a candidate's election or defeat to use only hard (regulated) money that is subject to contribution limits. A third closely watched case being fought out in the lower courts is North Carolina Right to Life Committee Fund for Independent Political Expenditures v. Leake, which challenges state public financing rules that indirectly penalize candidates who opt instead to raise private money.

It's only a matter of time, say some observers, before other core provisions of the election laws come before the high court. Indeed, Indiana election lawyer James Bopp Jr., who's led the recent string of legal challenges, argues that the time is ripe. "I think the soft money ban is readily susceptible to a First Amendment challenge," he said.

That may seem far-fetched to those who brush off recent developments on the high court. But when it comes to campaign finance restrictions, this court is proving more than eager to embrace deregulation.

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