As a historian, I tend to fend off questions about the future. "I only know what happened," I tell students. Over the years I have steadfastly stuck by this rule — with one exception — but that prediction seems right on target. Come Sept. 9, the U.S. Supreme Court will hear another case involving campaign finance regulation, and if I am correct, one or more sections of McCain-Feingold, more formally known as the Bipartisan Campaign Reform Act (BCRA), will be declared unconstitutional.
Congress first began wrestling with the problem of campaign finance a century ago. Over the years, efforts at reform followed a familiar pattern: Scandal ratcheted up public outrage, and then Congress would enact a "reform." Most recently, Bill Clinton's inviting big donors to overnight in the Lincoln Bedroom and the mushrooming of so-called soft money in the 1990s resulted in BCRA.
The Court got involved in 1976 when it heard a challenge to the Nixon-inspired reforms, and while it upheld most of the provisions in Buckley v. Valeo, it also announced a rule that would cause trouble for the next three decades. A majority held that expenditures by a candidate or a committee constituted political speech and under the First Amendment could not be restricted. Campaign contributions, on the other hand, were not political speech and therefore could be limited. The illogic of this rule has been the subject of numerous law review articles, and the Court itself has wrestled with it for years. In the meantime, contributors — especially big contributors — easily found ways to give as much money as they wanted.
Among the key provisions of BCRA were a ban on soft money; changes in the contribution limits to candidates, campaign committees and political parties; a prohibition on corporations, trade associations and labor unions paying for "electioneering communications" within 60 days of a general election and 30 days of a primary using "treasury money," although not on their political action committees doing so; a prohibition on individuals who paid for political ads hiding behind a front committee; a prohibition on fundraising on federal property; a prohibition on candidates or committees accepting money from people who were neither citizens nor permanent residents of the United States; and a prohibition on donations made through children and grandchildren.
Big-name lawyers and law firms offered their services pro bono both to attack and defend the bill, while such unlikely allies as the American Civil Liberties Union and the National Rifle Association stood together in opposition. The case reached the Supreme Court on Sept. 8, 2003, with four hours allotted for oral argument. There were so many provisions, so many challenges and parties, that, after the Court met and voted on the separate issues, it divvied up the work so that different justices would write various parts of the opinion. Despite the plethora of opinions, dissents and concurrences running 273 pages, the Court in McConnell v. Federal Election Commission upheld most of the act.
What struck me at the time was that opponents of BCRA had launched facial challenges to the law; that is, they had suffered no actual harm but believed that, if the law went into effect, it would violate their First Amendment rights or some other protected interest. Facial challenges are a heavy burden to prove, because one is asking the Court to speculate what might — or might not — happen. For example, Sen. Mitch McConnell (R-Ky.) claimed that the law would hamper him in his campaign, even though he had just been re-elected and would not face the voters again until 2008.
I wrote a book on the case and on the Court's responses to campaign finance reform and at the end predicted that, when the Court faced an "as applied" challenge — that is, when someone objected to how the measure actually operated — the justices would have a hard time justifying BCRA. And that has happened in almost every term of the Court since it handed down McConnell.
This past spring the Court heard oral argument in Citizens United v. FEC, a suit brought by a conservative group that had produced a highly critical "documentary" on Hillary Clinton that aired during the primary season. Although Hillary: The Movie ran nearly an hour, the FEC said the movie looked and sounded like a long campaign ad and banned its sale or advertisement as an "electioneering communication" subject to BCRA.
On the last day of the term, Chief Justice John G. Roberts Jr. rescheduled the case, asked for more briefs and asked the parties to argue whether the Court should overrule its 1990 decision in Austin v. Michigan Chamber of Commerce, which upheld a ban on corporate campaign spending, as well as the more recent McConnell case.
Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas have said overtly that they do not believe that congressional limits on campaigns can square with the First Amendment. Neither Roberts nor Justice Samuel A. Alito Jr. has indicated that he is willing to go that far but has hinted strongly that he might.
Whatever their views on campaign finance, the conservative majority also recognizes institutional limits, and there have already been cries of overreaching and lack of judicial restraint. No one knows how they will decide this fall, but I, for one, am sticking with my prediction.
Melvin I. Urofsky is a professor of law and public policy at Virginia Commonwealth University and author of the forthcoming Louis D. Brandeis: A Life.
