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  • The Difference Two Justices Make: FEC V. Wisconsin Right to Life, Inc. II and the Destabilization of Campaign Finance Regulation

    In the Bipartisan Campaign Reform Act (BCRA) of 2002, Congress banned corporations and unions from directly funding broadcast, satellite, or cable communications identifying federal candidates and targeting their electorates shortly before an election. In McConnell v. Federal Election Commission, the Supreme Court upheld this ban against facial constitutional attack without discussing the availability of as-applied challenges. Last term, in Federal Election Commission v. Wisconsin Right to Life, Inc. (WRTL II), the Court held one such challenge successful. The Court split three ways: Justices Stevens, Souter, Ginsburg, and Breyer would have upheld the ban against both as-applied and facial attack. Justices Scalia, Kennedy, and Thomas, on the other hand, would have overruled McConnell, decided only three years earlier, and found the ban unconstitutional on its face. The Court’s two new Justices, Chief Justice Roberts and Justice Alito, controlled the outcome. Although they did not overrule McConnell and hold the ban unconstitutional on its face, they found it unconstitutional under an as-applied standard that robs the ban of any content. This essay analyzes this controlling opinion and discusses both its direct and certain effects on electioneering communications and its more indirect and uncertain effects on other aspects of campaign finance regulation. Although it tries hard to appear not to do so, the controlling opinion clearly breaks with the past and threatens to destabilize large areas of campaign finance law.