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Earlier this week the Supreme Court took a major step toward the deregulation of American campaign financing with its decision in Wisconsin Right to Life v. FEC. Though the opinion is important for its actual holding � corporations and unions are going to have a much easier time paying for election-related ads out of their general treasury funds rather than from harder-to-use political action committees (or PACs) � its real significance is what it says about the court’s new attitude towards money and politics in general, and Chief Justice John Roberts’ views about how to best dismantle remaining liberal precedents on the court. Let’s begin with the holding. Before Congress passed the Bipartisan Campaign Reform Act of 2002 (“BCRA,” more commonly known as the McCain-Feingold law), we saw a proliferation of “sham issue ads” that said something like “Call Bob Dole and tell him what you think of his lousy plan to gut Medicare.” By avoiding words of “express advocacy” like “Vote for Clinton,” the ads could be paid for out of corporate or union treasuries, and no disclosure was required. (Corporations and unions could pay for express advocacy only through PACs, which could be funded with contributions of no greater than $5,000 from any one individual). BCRA changed the law by saying that if corporations or unions wanted to run television and radio ads close to the election featuring a candidate for federal office, then they had to be paid for out of the same PAC funds, and anyone (including individuals) paying for such ads had to disclose where the money came from � regardless of whether or not the ads contained express advocacy. This is BCRA’s “electioneering communications” requirement. In McConnell v. FEC (2003), the Supreme Court by a 5-4 vote upheld the electioneering communications rules. In follow-up litigation, a nonprofit corporation, Wisconsin Right to Life, took over $300,000 in for-profit corporate money to pay for television ads that were crafted to challenge McConnell’s holding. The ads mentioned Wisconsin’s two senators � Herb Kohl and Russ Feingold � and urged that they not filibuster judicial nominees. The ads also pointed to WRTL’s Web site, where voters could learn that WRTL had taken a position against Feingold’s reelection. WRTL argued in the Supreme Court that its ads were really an attempt at “grassroots lobbying” on the issue of filibusters and that BCRA’s new laws could not constitutionally be applied against it (on the theory that BCRA could target only purely election-related ads). But on Monday, the Supreme Court went even further than WRTL asked, ruling that the PAC requirement for corporations and unions runs afoul of the First Amendment, except when applied to advertising that “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The rule creates a loophole that a campaign finance lawyer can drive a truck through. In making the “no reasonable interpretation” judgment, the Roberts court ensured that a lower panel (or the Federal Election Commission, for that matter) may not examine the context of the ad, or consider that ad’s likely intent or effect given the context of an election campaign. The upshot is that we can expect many more ads (probably many more attack ads) run by corporations or unions in the weeks leading up to the February presidential primary and before the general election in November 2008. Yet just as important as the holding of this case is the signal it sends about how lower courts should consider challenges to other campaign finance laws. Already Roberts’ line “enough is enough” is becoming the rallying cry of those who support more campaign finance deregulation. The opinion adopts the language of the deregulatory camp, calling the McCain-Feingold law a “blackout” on corporations or unions, rather than, as the court in McConnell did a few years ago, a reasonable PAC requirement enacted by Congress and entitled to deference. Justice Samuel Alito, who replaced Justice Sandra Day O’Connor on the court and whose vote was decisive in this case, issued a brief concurring opinion warmly inviting campaign finance opponents to make a more frontal attack to overrule McConnell’s other provisions. It echoes a similar call last year in his concurring opinion inviting litigants to challenge Buckley v. Valeo’s holding allowing for reasonable campaign contribution limits. The writing is on the wall. If this five-justice majority stands (including Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas, who are ready to declare any limits on money in politics as a violation of the First Amendment), there will be little left of campaign finance law within a few years as more of these cases work their way up the system. And watch out, because the long-term goal of the deregulators goes even further: Many would like to get rid of even those finance laws allowing for disclosure of who is funding election-related ads. Beyond campaign finance, the court’s decision in WRTL shows precisely how Roberts intends to undo the remaining liberal precedents of the past. Rather than expressly overrule precedents with which he disagrees, he is more content to give the appearance of “tweaking” the law � all the while doing radical surgery. It is similar to the way the court treated the abortion question earlier this term in Carhart &# 151redefining (without expressly overruling) the “undue burden” standard to make it much easier for states to impose limits on abortion. No one is fooled, however. Scalia acidly noted in a footnote to his concurring opinion in WRTL that besides Roberts and Alito, the seven remaining justices on the court � who agree about little else in the campaign finance arena � agree that the chief’s opinion essentially overrules McConnell: “This faux judicial restraint is judicial obfuscation.” At his confirmation hearing, Roberts talked of judicial modesty and the building of judicial consensus. By those measures, his performance thus far has been disappointing, with a whole slew of 5-4 decisions coming down this term. But for those who want to see a radical sea change in constitutional law in the direction of conservatism and deregulation, the Roberts Court so far appears to be quite successful. Richard L. Hasen, the William H. Hannon Distinguished Professor of Law at Loyola Law School, writes the Election Law Blog (www.electionlawblog.org). He submitted a pro bono amicus brief supporting the federal law in the Wisconsin Right to Life case.

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