Court to revisit campaign-finance debate

Wednesday, September 28, 2005

Two years ago, in McConnell v. Federal Election Commission, the Supreme Court upheld the McCain-Feingold campaign-finance law and reaffirmed its landmark Buckley v. Valeo precedent as the basic framework for assessing First Amendment challenges to campaign-finance legislation.

Yesterday, the Court signaled that it may be having second thoughts, agreeing to hear a series of cases that challenge aspects of both the Buckley decision and the McCain-Feingold law, known formally as the Bipartisan Campaign Reform Act.

The justices, acting at their “long conference” at which they assessed a summer’s worth of petitions, agreed to consider a strict Vermont law that was passed to give the Court a vehicle for reexamining Buckley, and a suit by a Wisconsin anti-abortion rights group that challenged a section of McCain-Feingold.

The Court’s actions unsettled some campaign-reform advocates, especially at a time when Justice Sandra Day O’Connor, a fairly reliable supporter of campaign-finance laws, is about to retire, and the views of chief justice nominee John Roberts Jr. are unclear.

Fred Wertheimer, a key reform strategist, said his group, Democracy 21, would enter both cases “in order to ensure that longstanding and well-established precedents to protect against the corruption of democracy are not overturned or undermined by a Supreme Court currently in transition.”

On his Election Law blog, Loyola Law School professor Rick Hasen wrote yesterday, “Since the 1976 Buckley case, the Court’s cases have swung back and forth like a pendulum, in recent years in favor of upholding campaign-finance regulations. We could well be entering the period where the pendulum swings back.”

The Vermont law at issue contains restrictions both on campaign donations and on spending by candidates. Candidates for governor, for example, may not spend more than $300,000 in the two years before the election. Sponsors of the law explicitly stated they wanted to trigger a Supreme Court re-examination of the Buckley decision.

The Buckley case in 1976 struck down federal campaign-spending limits on candidates on the ground that such limits were equivalent to limits on candidates’ speech. But reformers say that by allowing unlimited spending by candidates, Buckley guaranteed that there would be an unquenchable thirst for campaign cash that would eventually undermine limits on donations, which were upheld in Buckley. The explosive growth of unrestricted soft-money donations in the 1990s appeared to prove their point, leading to passage of McCain-Feingold, which outlawed soft money, among other things.

Recognizing the new election landscape since Buckley, the 2nd U.S. Circuit Court of Appeals upheld the Vermont law in spite of Buckley, at least preliminarily. It said compelling new reasons for spending limits now exist that were not considered in Buckley, such as public cynicism about politics, and the time candidates spend raising campaign money. The appeals court sent the case back to lower courts for further findings. But the Supreme Court did not wait for that step, taking the case for argument and decision later this term. Advocates on both sides of the issue urged the Court to accept the case.

Some supporters of spending limits appear confident the Court will use the case to reverse part of Buckley and allow spending limits on candidates. “This case is about law catching up with political reality,” said Brenda Wright of the National Voting Rights Institute. “When Buckley was decided the cost of campaigns was relatively modest. Thirty years later, it’s clear that (the) fundraising arms race has turned our officeholders into full-time fundraisers and undermined the public’s faith in government.”

But Hasen, for one, thinks reformers took a risky gamble by urging the Court to review the 2nd Circuit decision, since it is equally possible that the Supreme Court will use the case to uphold Buckley’s ban on spending limits by reversing the 2nd Circuit.

“Plaintiffs should be careful what they wish for,” Hasen wrote, warning that the Court’s acceptance of the Vermont case “might mean a losing decision down the line, whereas waiting this out for another half decade or so, depending upon the composition of the Court, could have been a wiser strategy.” There is also nothing stopping the Court from examining the other part of the 2nd Circuit ruling, which upheld contribution limits.

The cases granted by the Court yesterday, which will be consolidated into one hour of oral argument in January or February, are Randall v. Sorrell, 04-1528, Vermont Republican State Committee v. Sorrell, 04-1530, and Sorrell v. Randall, 04-1697. Neil Randall was a Libertarian Party candidate for the Vermont Legislature. William Sorrell is the state attorney general.

The other campaign-finance case the Court added to its docket yesterday is Wisconsin Right to Life Inc. v. FEC, 04-1581. In the McConnell decision, the Supreme Court upheld a feature of the McCain-Feingold legislation that bans direct corporate or labor union funding for so-called electioneering communications — ads that mention candidates for federal office — for 60 days before an election.

Wisconsin Right to Life, which is technically a corporation — though a nonprofit corporation, wanted to run ads in 2004 concerning judicial nominations and how the Senate should deal with them. Because of the law, the group could run ads mentioning the name of one Wisconsin senator, Herb Kohl, but not the other, Russ Feingold, because Feingold was facing an election. The group challenged the ban in court and sought an injunction against its enforcement, but a three-judge panel in the District of Columbia upheld the ban, citing the McConnell decision.

Under provisions of the law that allow for quicker appeals known as jurisdictional statements, the Wisconsin group appealed directly to the Supreme Court, asserting that while McConnell upheld the electioneering ban on its face, appeals should be allowed on the basis of how the law is applied to specific circumstances.

“Broadcast advertisements are the most effective form of communication for a grass-roots lobbying campaign,” said James Bopp Jr., lawyer for the Wisconsin group. Prohibiting such ads, Bopp asserts, violates the First Amendment.

The Wisconsin case will also be argued in January or February.

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