Document Type

Article

Publication Date

2008

Abstract

In Federal Election Commission v. Wisconsin Right to Life, Inc. (WRTL II), a closely divided and fragmented Supreme Court, without a majority opinion, held that the First Amendment requires the creation of a sweeping as-applied exception to § 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), which extended the ban on the use of corporate and union treasury funds in federal election campaigns to “electioneering communication.” In so doing, the Court broke sharply with its 2003 decision in McConnell v. Federal Election Commission, which had, inter alia, rejected a facial challenge to the constitutionality of that BCRA provision. Without formally overturning that part of McConnell or officially invalidating the recently sustained “electioneering communication” measure, WRTL II effectively did both.

This article provides a brief analysis of WRTL II, with particular attention to Chief Justice Roberts’ opinion announcing the judgment of the Court. Part II frames the case against the quarter-century effort from Buckley to BCRA and McConnell to define the constitutionally permissible scope of campaign finance regulation, that is, in language I have previously used, to “draw the elections/politics line.” Part III focuses on WRTL II’s relationship to McConnell, and its departures in analysis and tone from the major components of McConnell’s approach. Finally, Part IV considers the implications of WRTL II for the future development of campaign finance law. WRTL II continues the process, begun during the preceding Term, of changing the Court’s stance toward campaign finance regulation from relative deference to sharp skepticism, and it raises new questions about older rulings, including other components of McConnell. It is not clear that WRTL II ‘s break from McConnell can be cabined to the treatment of corporate and union electioneering communication. On the other hand, Chief Justice Roberts’ reluctance, so far, to actually overturn precedents renders the future of campaign finance law more unpredictable and uncertain than ever.

Disciplines

Election Law | Law

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