Roberts' New Rules

The U.S. Supreme Court’s decision in Federal Election Commission. v. Wisconsin Right to Life, Inc. effectively eviscerates one of the two major provisions of the Bipartisan Campaign Reform Act of 2002. Writing for the 5-4 majority, Chief Justice John Robert’s opinion gives corporations and unions exemptions to BCRA unless their ads are the “functional equivalent of express advocacy.” That test is satisfied only if the ads are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

Roberts’ opinion did not overturn the law outright, as Justices Scalia, Thomas and Kennedy had argued for, but Justice Scalia said in a footnote, “This faux judicial restraint is judicial obfuscation.” The opinion “effectively overrules” the 2003 McConnell v. Federal Election Commission decision “without saying so,” in Scalia’s words.

The decision returns us to our past. If a political ad sponsor mentions an issue and skips any reference to voting, the sponsor is free to use unlimited corporate or union funds and hide the contributors’ identities behind some benign-sounding committee name. Transparency? Forget it. There are no political consultants that are stupid enough to get on the wrong side of this new interpretation of the law. Contemporary political ads are used to define the candidates’ suitability for office in terms of issues. A candidate’s own ads wouldn’t be so direct and obvious as to say, “Vote for me.”

What should we expect next? When you consider that there are now private equity funds, or hedge funds, that have a trillion dollars under management, it’s quite likely we’ll see corporate investing in politics like never before. Free speech? Right. See whether your favorite candidate wants to hear you or the manager of the hedge fund on Wall Street. Democracy? Whose concerns do you think will get attention: Yours and your neighbors’, or those of the hedge fund manager?

This is a very sad development for American politics.

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