Last 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 toward money and politics in general, and Chief Justice John Roberts’ views about how to best dismantle the Court’s remaining liberal precedents.
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).
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