For many years, conservatives have longed for the day when the Supreme Court would begin rolling back Warren and Burger Court precedents. In part because Republican Presidents made ten straight appointments to the Supreme Court after Chief Justice Earl Warren retired, many assumed that these precedents would be rolled back during the tenure of Chief Justice Rehnquist. While progress was made, conservatives found themselves still waiting for the major transformation to occur. But four new decisions Monday on subjects as diverse as free speech in schools, standing to sue, and the interpretation of the Endangered Species Act suggest that the conservative moment may finally be close at hand.
The most important decision in this regard is the Court’s 5-4 decision in Federal Election Commission v. Wisconsin Right to Life. In that decision, the Court set its sights squarely on its earlier precedent in McConnell v. FEC and even its Burger-era precedent in Buckley v. Valeo. The Court likely dealt a mortal wound to McConnell, while leaving real doubts about the continued vitality of Buckley, the keystone of the current campaign finance system.
Wisconsin Right to Life (WRTL) addresses what is probably the most difficult concept in our Byzantine scheme of campaign finance regulations: The difference between issue advocacy and electoral advocacy. To grossly oversimplify, the basic regime set up by Buckley is that electoral advocacy — speech that advocates the election or defeat of a candidate — may be regulated, but issue advocacy — speech that advocated a stance on a particular issue — can not be regulated.
This begs the question of how to define meaningfully the difference between issue and electoral advocacy when regulating certain types of speech. Congress took a shot at such a definition in the “electioneering” provision of the Bipartisan Campaign Reform Act of 2002, more commonly known as “McCain-Feingold” or “BCRA,” by criminalizing the action of any corporation (including a labor union) that spends general treasury funds for any broadcast that refers to a candidate for federal office and is aired within 30 days of a federal primary election or 60 days of a general election. To the surprise of many, the Court upheld this definition in McConnell.
But McConnell involved only what is known as a “facial” challenge to the statute. This essentially forces the Court to ask whether there are any conceivable situations in which the law can be upheld. It explicitly left open the possibility of an “as-applied” challenge, that is, one where the Court considers whether the law can be enforced in a specific situation or under a specific interpretation of the law (for those lawyers reading this, yes, I am again oversimplifying greatly). In other words, the Court held that while the “electioneering” provision of BCRA does not always violate the First Amendment, it may under certain interpretation run afoul of our Free Speech guarantee.
BCRA notwithstanding, Wisconsin Right to Life wanted to run ads within 30 days of the 2004 Wisconsin Primary election. These advertisements would have urged people to call on Wisconsin’s Democratic Senators to end the filibusters of judicial nominees. Because this could run afoul of BCRA, Wisconsin Right to Life felt that it could not run the advertisements, and asked the courts for a declaratory judgment that such advertisements could not be barred by the government.
After navigating some technical barriers and going up to the Supreme Court once, the Supreme Court finally heard the case on its merits in 2007. It essentially concluded that an advertisement may only be constitutionally regulated if “the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”
If you are scratching your head wondering how the “30-day-rule” is constitutional, but has to be interpreted in such a way as to apply only to advertisements that can only be considered appeals to vote for or against a specific candidate, then you are in good company. The initial reaction from the left and the right is fairly unanimous that the Court has, for all intents and purposes, overruled McConnell and at best restricted BCRA to an extremely narrow set of advertisements that is not much broader than the pre-BCRA set of advertisments.
More importantly for the “big picture,” Justices Kennedy, Scalia, and Thomas authored a concurring opinion urging the Court to make explicit what was most likely implicit — that McConnell is dead. This is important because Justice Kennedy is widely regarded as the swing vote on this issue, so his alignment with Justices Scalia and Thomas portends a potential radical shift on the Court. Justice Alito also entered a concurring opinion which seemed to embrace the possibility that McConnell should be overruled in the future. Chief Justice Roberts remains an open question, but he is likely to go along with McConnell’s eventual demise, and is seen as merely embracing the “minimalist” approach to overruling a case in WRTL: nibbling away at a decision bit by bit until nothing is left, at which point the case is overruled explicitly.
The most important question, though, is the future of Buckley itself. As Richard Briffault has noted, WRTL is significant alone for explicitly rejecting several justifications for expanding Buckley. But does Kennedy’s alignment with Scalia and Thomas signal that he has concluded that contributions can not be constitutionally restricted? Is Alito on board with such a project if directly asked? And how quickly can Chief Justice Roberts be brought around to overruling such a watershed decision? The answers to these questions likely lies in the next three or four terms, which should prove interesting indeed. But the revolution that was expected twenty years ago may finally be arriving.