ACSBlog: The Blog of the American Constitution Society

The Supreme Court held today that the Bipartisan Campaign Reform Act violates the Constitution by preventing an issue advocacy group by running ads during the election season.  ACSBlog previously featured this case in its midterm review:

Campaign Finance

In McConnell v. FEC (2003), a 5-4 Supreme Court upheld the virtually all provisions of the Bipartisan Campaign Reform Act (BCRA) against claims that the law violates the First Amendment.  Justice O’Connor cast the deciding vote in that case, and her departure leaves the staying power of McConnell uncertain less than four years after it was decided.  This term, the Roberts Court’s decisions in FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life could strip Congress of much of its power to regulate campaign finance. 

The narrow issue in WRtL relates to a provision of BCRA directed towards “sham issue ads,” which purport to advocate a position on a particular issue (“call Senator X, and tell her to . . .”) but which has the alleged effect of enticing voters to vote for or against a candidate for federal office.  In order to prevent such ads, BCRA includes a prophylactic measure which prohibits corporations and unions from running any ad mentioning a candidate’s name within 30 days of a primary or 60 days of a general election.

A potential broader issue is whether longstanding limits on corporations influencing elections will continue to stand.  In Austin v. Michigan Chamber of Commerce, the Court held that because of “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas,” corporations may be categorically barred from contributing to political campaigns.  Justice Kennedy dissented in Austin, and he reiterated this view in McConnell, in which his dissent characterized Austin as “an indefensible departure from our tradition of free and robust debate.”  If the Court’s newest Justices share Justice Kennedy’s view, corporations could soon find themselves with new power to influence federal elections.