Hayward in Legal Times: No Sea Change in Campaign Finance Decision

The standard recently set by the Supreme Court in Federal Election Commission v. Wisconsin Right to Life permits more pre-election spending by corporations than the Bipartisan Campaign Reform Act (BCRA), but the decision is far from a "sea change" in doctrine or practice, says Professor Allison Hayward, writing for the Legal Times.

Hayward argues that after the WRTL ruling, the difference between protected speech and illegal corporate expenditures will hinge on a judge's view of whether an issue advertisement is seen as something other than an effort to influence votes for or against a candidate. An analysis of what constitutes "express advocacy" has been ongoing for years under prior existing law in a fashion that is not radically different from what can be expected under WRTL.

Politics as Usual, Legal Times, week of July 9, 2007. By Allison R. Hayward.

"The question in Wisconsin Right to Life isn't new. After Congress enacted the first political committee registration requirements in 1911, issue groups like the Anti-Saloon League immediately insisted that their 'political education' activities were about 'issues' not 'candidates.' Their opponents, naturally, accused them of cirumventing the law. The law was rarely enforced, and so the Supreme court had little occasion to rule on challenges. Meanwhile, in other First Amendment cases, the Court built a strict-scrutiny standard for content-based speech restrictions that became known as 'strict in theory, but fatal in fact.'

"The court wrestled with how this doctrine should be applied to campaign finance laws in Buckley v. Valeo (1976). That per curiam decision attempted to strike a middle way between justices who saw the Federal Election Campaign Act of 1974 as the ordinary exercise of Congress' power to regulate elections, and those who saw it as abridging core political speech. By imposing different standards of review on contributions and expenditures, and by construing the law to apply only to ads by outside groups containing express advocacy, the Court attempted to render a decision faithful to free speech while permitting Congress to 'do something' about campaign finance."

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