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Worries about the “Stakes” In Wisconsin Right to Life PDF  | Print |  Email
By Bob Bauer   
January 22, 2007

Is Campaign Finance Deregulation Now In Progress?


This article appeared on Bob Bauer's Blog and is reposted here with permission of the author.


The Supreme Court’s decision to hear Wisconsin Right to Life (WRTL) has moved some to argue that the era of campaign finance deregulation is at hand. Rick Hasen has suggested as much:  he projects the "next step toward a deregulated campaign finance system." He and others suspect that, having politely bided their time, Chief Justice Roberts and Justice Alito may now be ready to take this step. The precise issue before the Court in WRTL—the 30- and 60-day broadcast "black-out" periods for corporations and unions—opens this assault on the campaign finance regulatory structure.

WRTL, while it is an important case, by no means presages a major Court confrontation with the campaign finance laws as a whole. The advertising ban before the Court was always one of the more tenuous provisions of the new law.  Here was a prohibition on independent speech without express election-related content. It was grated onto a law otherwise concerned more centrally—and more defensibly—with candidate and party evasion of limits intended to protect against corrupt bargains with special interests. Imposed with little qualification, and on a theory that "everybody knew" that certain advertising run in the specified periods was, in fact, campaign advertising, this "electioneering communication" ban stirred up more opposition, across a broader community of political actors, than any of the other provisions. 


Some part of the resistance can be explained by nothing more, or less, than the perceived effrontery of officeholders prepared to decree the illegality of independent speech precisely, and for their benefit, because it was independent. Independent of them; which meant, often, critical of them. Elsewhere in  the law the officeholders regulated their own conduct, and (rightly or wrongly), it seems to many tolerable that, if elected officials are convinced of their corruptibility, they may take steps, at their own expense, to do something about it.  When national party committees under their control are barred from accepting "soft money" directly from large companies, or when officeholders are separately prohibited from asking for this money, these are cases where those who hold power might have given something up for the greater good.  The sacrifice is largely theirs.

Once independent political speech of some kind is proscribed, others, not the legislators, bear the primary burden—and then the question is fairly raised:  for whose benefit, the public’s, or those able to impose the limitation?


On a more theoretical level, defenders of this restriction have launched arguments of different kinds, in two very different directions.  They have argued that this is merely a tightening of the law already on the books to prohibit corporate or union election-related spending.  A "tightening" might seem inoffensive, but the provision does more than that, scrapping any requirement of "express advocacy" and inferring an election-related purpose from a) timing, b) naming (of a federal candidate), and c) location, within the jurisdiction where the officeholder stands for election or reelection.  It is an escape from the strictures of the "anti-corruption" rationale toward an equality-centered goal of regulating "influence" over elections.


To get at this influence, the courts must be prepared to flush out the true intentions of the persons running these ads.  For if the ad’s content does not decide the question—because, for example, it does not include election-related language—then the law must rummage around in search of "intent."  This is what the dissent in WRTL insists that judges must do:  figure out what people are up to.  In other words, if an ad referring to a federal candidate is run within the defined periods, this raises a presumption, of sorts, of an election-related purpose and the government is justified in conducting further inquiry.  The ad may not be illegal, but it must be investigated.


This is what sets the electioneering communication ban apart from the rest of McCain-Feingold.  The rest of the law has its foot planted in the past, in certain expectations of how the l970’s reforms—the contribution limits in particular—should be enforced.  The electioneering communication ban looks ahead, to new frontiers of regulation, where" influence" more broadly is controlled.  It is tied very much to other issues in contemporary campaign finance that will shape the future of regulation:  in particular the question of regulating 527s, which also arises out of the urge to control influence and to ferret out the true intention of speakers so that this control can be achieved.


If the Court limits the range of the 30/60-day spending prohibition, by carving out an exception for "grassroots lobbying," it will not have retreated from its evolving infatuation with the virtues of "deferring" to Congress.  The theory of deference, whatever may be said for it, holds that Members are experts in campaign matters, knowledgeable about campaign fundraising and its effect on them as officeholders.  This begs the WRTL question:  which is about whether the kind of advertising before the Court can be classified as "campaign" spending, and it is not a question that Members can be trusted to answer disinterestedly, posing as "experts." 


It is a mistake to assume that the Court might seize on WRTL with some plan to weaken the very foundation of campaign finance regulation.  The Court might act simply to define the line between regulation within more established, limited constitutional boundaries, and a new and more expansive version that relocates those boundaries in order to put independent, sometimes influential, political speech under government control. 

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