High court signals changing course on campaign finance

Tuesday, January 24, 2006

WASHINGTON — The Supreme Court’s latest ruling on campaign-finance reform,
issued yesterday, is only three pages long. But it managed to cast a significant
shadow on the Court’s 298-page landmark ruling in McConnell
v. FEC.

That 2003 ruling upheld virtually all of the McCain-Feingold campaign-finance
law by placing a high premium on the law’s bright-line rules and comprehensive
scope. To chip away at the law provision by provision would sap its overarching
strength, the Court seemed to suggest.

The Court in McConnell even imposed a less rigorous standard of review
than it usually uses in First Amendment cases, in deference to what the majority
described as “Congress’ ability to weigh competing constitutional interests in
an area in which it enjoys particular expertise.”

But yesterday’s ruling
seemed to chart a new direction, opening the door to the very exceptions and
line-by-line scrutiny that the Court once discouraged. And the justices did so

In a case argued just six days earlier, the justices ruled in Wisconsin
Right to Life Inc. v. Federal Election Commission
that a lower court and
the Bush administration were wrong to foreclose individual as-applied challenges
to the provision of the law restricting the broadcast of pre-election issue
advertising defined as “electioneering communications.”

Whereas in the 2003 McConnell ruling the Court readily upheld the law
on its face, now the justices were insisting the door was open to challenges
that attack the law as applied in the real world.

That invitation could get the Court back into the business of carving out
exceptions to the law, thereby undermining it, say some election-law

“If the Supreme Court has decided to sacrifice some clarity for greater
immunity from campaign-finance regulations, where will be the stopping point?”
asked Edward Foley, an Ohio State University law professor. “It is conceivable
that, after some years of observing an ‘unworkable’ standard for defining the
category of messages eligible for an as-applied exemption, the Court scraps the
effort altogether and strikes down the ‘electioneering communication’ funding
restriction across-the-board, thereby overruling McConnell.

Adds Richard Hasen, a professor at Loyola Law School in Los Angeles, “This
could be an important first step toward undermining McConnell without
overruling it.”

Still, reform advocate Fred Wertheimer, president of Democracy 21, cautioned
that “The Court decision did not invalidate the McCain-Feingold law in any
respect, and the law remains in place for the 2006 election.”

The Court remanded the case to a three-judge panel in Washington, D.C., with
instructions to take another look at the Wisconsin group’s challenge.

The McCain-Feingold law prohibits unions and corporations — including
non-profit corporations — from directly funding issue advertising that refers to
candidates within 60 days of an election. Those ads can be paid for through
political action committees whose funding is regulated and disclosed, but the
Wisconsin group says it was entitled to pay for the ads directly while reserving
limited PAC funds for other messages.

Wisconsin Right to Life said the law forced it to withdraw what it described
as “grass-roots issue advertising” just because Russ Feingold, one of the two
Wisconsin Democratic senators mentioned in the ads, was running for re-election.
The advertising was aimed at expressing opposition to Democrats’ filibustering
of judicial nominees. This kind of advertising, unrelated to an election, should
be exempted from the rule set out in McCain-Feingold, lawyers for Wisconsin
Right to Life told the Court.

Both the three-judge panel and the Bush administration, in defending the law
against the Wisconsin group’s challenge, said the McConnell ruling
foreclosed such as-applied challenges.

But during oral argument last week, Chief Justice John Roberts seemed angry
at the government for taking that stance, which he said amounted to a “classic
bait and switch” because the government in pre-McConnell filings had said
as-applied challenges were possible.

Roberts’ concerns were reflected in the unsigned per curiam opinion that he
announced from the bench yesterday. “In upholding [the law] against a facial
challenge, we did not purport to resolve future as-applied challenges,” the
ruling stated.

The decision came on what could be Justice Sandra Day O’Connor’s final day on
the bench before retiring. The decision could have been a way for the justices
to put off hard questions raised in the case until after O’Connor’s putative
successor Samuel Alito Jr. is confirmed — which could come as soon as this week.
But in the meantime, the ruling has cast uncertainty over the future course of
campaign-finance regulation.

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