Thomas Mann joined former FEC chairman Brad Smith to discuss the real or perceived danger to the McCain-Feingold law, alternative methods of finance reform and more, in a week long debate for the Los Angeles Times. Read the Entire Debate
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.