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The first term of the Roberts Court was a potentially pivotal moment in campaign finance law. The Court both broke its pattern of deference to federal and state regulations that had marked the last half-dozen years and began to take a more critical approach to campaign finance restrictions. In Randall v. Sorrell, the Court struck down a Vermont law that sought to limit expenditures and to lower contributions in state and local elections. The expenditure restriction decision was no surprise, as it essentially reaffirmed the Court's rejection of expenditure limits in Buckley v. Valeo three decades ago. But the ruling that Vermont's contribution limits were too low marked the first time the Court had invalidated a contribution limit in a candidate election. Although Randall subjected contribution limits to closer scrutiny than in previous cases, the fragmented Court failed to articulate a clear standard of review.

In Wisconsin Right to Life v. FEC ("WRTL"), the Court determined that the 2003 decision in McConnell v. FEC, rejecting a First Amendment challenge to the "electioneering communication" title of the Bipartisan Campaign Reform Act ("BCRA "') of 2002, only dealt with a facial attack, thus permitting an as-applied challenge. WRTL, thus, recognized the new and difficult question of determining when political ads that fall within the statutory definition "electioneering" ought nevertheless be exempt from election regulation. The Court, however, said nothing about the standards for determining when an as-applied exception should be granted. That question – and the long-term significance of the decision – may be resolved when the case returns to the Court this term.

It is unclear whether Randall and WRTL simply mark the end of a period of judicial deference to new campaign finance limits or whether they signal the beginning of an era in which the Court will reconsider older decisions and move in a more sharply deregulatory direction. At the very least, the cases reopen old questions, create new uncertainties, and underscore the divisions within the Court concerning the constitutional framework for addressing campaign finance restrictions. Together, they provide new impetus to the idea that campaign finance reformers should redirect their energies away from limiting private funds and give greater attention to increasing the role of constitutionally unexceptionable public funds in our campaign finance system.


Constitutional Law | Election Law | Law | Law and Politics


Originally published in 68 Ohio St. L. J. 807 (2007).