Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life

By Richard L. Hasen. Full text here.

With the recent personnel changes on the Supreme Court, the pendulum has swung sharply away from deference in campaign finance regulation toward perhaps the greatest period of deregulation since before Congress passed the important 1974 Amendments to the Federal Election Campaign Act. In the 2006 Randall v. Sorrell decision, the Court for the first time struck down individual contribution limits in candidate elections as too low. In 2007’s Federal Election Commission v. Wisconsin Right to Life, Inc. (WRTL II), the Court mostly eviscerated a key aspect of the McCain-Feingold law limiting corporate and union spending in federal elections. More importantly, a new Court majority has signaled its receptivity to many more challenges to campaign finance laws.

As a matter of jurisprudence the Roberts Court’s approach to campaign finance regulation is just as incoherent as the Rehnquist Court’s New Deference approach, though it moves in a decidedly different ideological direction. Likely in an effort to appear moderate or minimalist, Chief Justice Roberts and Justice Alito have made their deregulatory moves without expressly overturning existing precedent, leading Justice Scalia to decry their actions as faux judicial restraint.

Beyond incoherence, the WRTL II principal opinion removes effective limits on corporate and union spending from their general treasury funds in elections. Only ads that expressly advocate the election or defeat of candidates for office and those that are an appeal to vote for or against a specific candidate may not be paid for with these general funds. Although debatable issues of interpretation remain, the new test will not pose a formidable obstacle for those corporations and unions. As a result, we could well see a significant rise in corporate election-related spending. Looking further into the future, following WRTL II, many other campaign finance regulations are likely to be struck down on First Amendment grounds.