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Please note: the author is a consultant to the attorneys representing the Intervenor-Defendants in McConnell v. FEC. The views expressed in this article are solely the author’s and do not represent the position of the Intervenor-Defendants or their attorneys.

If the “bigness” of a Supreme Court case is measured by the general public’s knowledge of the case, then most likely McConnell v. FEC will never be as big a case as, say, Dred Scott[1] or Roe v. Wade[2] or Bush v. Gore.[3] After all, Buckley v. Valeo[4] – the predecessor big case in the field of campaign finance – lacks the public salience of these other Supreme Court giants. But if bigness, instead, is measured in terms of its potential impact on the future development of America’s political system, including the future development of the Court’s own constitutional jurisprudence, then McConnell v. FEC rightfully could claim that history may judge its stature comparable to these other cases. For the Court’s decision in McConnell v. FEC is likely to dramatically affect the way political parties and other large-scale institutional actors function in American politics, and the reasoning the Court employs either to sustain or reject the Act of Congress at issue in the case will serve as a framework for reasoning for decades to come in future cases involving the regulation of political activities.

The case, moreover, is an exceptionally big one in terms of the number of distinct questions it presents for decision by the Court. Technically, twelve separate appeals in the Supreme Court that have been consolidated for purposes of argument there (all the appeals stemming from the same district court decision, which itself involved a consolidated proceeding of eleven different lawsuits), McConnell v. FEC involves constitutional challenges to multiple provisions of the Bipartisan Campaign Reform Act, known as “BCRA” or “McCain-Feingold” (after the names of two of its principal sponsors in the Senate).[5] A decade or so in the making, BCRA represents a major overhaul of the pre-existing federal campaign finance law, which was embodied in a Watergate-era statute called the “Federal Election Campaign Act” or “FECA”. Perceiving FECA to be inadequate in a variety of respects (because of efforts by various political actors to subvert its provisions), Congress in BCRA adopted a statute to repair the different deficiencies exposed in the FECA regime. As a result, the Government’s brief defending BCRA in the Supreme Court identifies thirteen separate provisions of the statute subject to constitutional attack by the various plaintiffs in the case. A constitutional challenge to any single one of these thirteen different provisions, all by itself, would be a pretty big case, as judged by the Court’s overall docket in any given year. But the combination of all thirteen of these constitutional challenges makes the case colossal by conventional Supreme Court standards. Accordingly, the Court has ordered four hours of oral argument for the case, in contrast to the usual one. And, as an additional signal of the case’s practical significance to the operation of American politics, in an effort to comply with Congress’s instruction to expedite the adjudication of constitutional challenges to BCRA’s provisions, the Court has taken the extraordinary step of holding its oral argument on September 8, four weeks in advance of the normal opening of the Court’s term (at the beginning of October).

The gargantuan size of the case can be measured, too, in the sheer volume of the record developed in the district court, involving 100,000 pages of paper as well as audio and video submissions. The district court’s decision, also, is a record-setting 1,638 pages in length, with four different opinions authored by the three-judge panel.[6] The briefs submitted in the Supreme Court, by the parties and their amici, are also a hefty set (the normal page limits having been extended for the parties, given the number, complexity, and importance of the questions presented) – although in this respect McConnell v. FEC is not so far out of line with other recent “blockbuster” cases with which the Court is familiar (for example, last term’s Michigan affirmative action cases).

Given all this, it is obvious that any attempt at a somewhat succinct preview of the oral argument cannot pretend to offer a comprehensive examination of the case. Instead, it will focus only on a couple of the biggest issues in the case, as indeed will the oral argument itself. The Court has structured oral argument around the two main questions in the case: (1) the constitutionality of the so-called “soft-money” provisions in Title I of BCRA, and (2) the constitutionality of the “electioneering communications” provisions of Title II. To be sure, the Court has ordered that a small amount of oral argument time be devoted to one of the less significant provisions of the statute: its prohibition on political contributions by children. But the main attention of the Court at the oral argument will be on the “soft money” and “electioneering communications” provisions, and thus any effort to analyze how the Justices might be thinking about the case as they prepare for oral argument should concentrate on these provisions as well.

Soft Money “Soft money,” simply put, is money given to political parties that is not subject to the rules set forth for campaign contributions in FECA as it existed prior to BCRA. In its pre-BCRA structure, FECA prohibited political parties from receiving contributions from corporations or unions (the so-called source limitation) and prohibited individuals from giving more than $20,000 per year to a political party (the so-called amount limitation). The soft-money problem arose because FECA defined “contribution” to mean any gift “for the purpose of influencing any election for Federal office.”[7] With increasing brazenness, accelerating exponentially in the 1990s, both the Democratic and Republican parties sought and obtained donations from corporations and unions, and from individuals in amounts far exceeding $20,000 per year, on the pretext that these donations were not given to the parties “for the purpose of influencing any [federal] election” – when in fact they were given to, and used by, the parties for just this purpose.

But the soft-money problem went beyond even these blatantly fraudulent practices. Given the close working relationship between federal candidates and at least the national committees of the Democratic and Republican parties, a soft-money contribution to these national committees – regardless of the specific use to which this contribution was put – was essentially the same as a soft-money contribution to the candidates’ own campaign committees, to be used as the candidates themselves thought best. Quite clearly, it would be inappropriate to permit contributions directly to federal candidates from sources and amounts prohibited by FECA, even if the federal candidates used these funds to support (rather than their own campaigns directly) the campaigns of state or local candidates with whom they were politically allied. Such soft-money contributions, from corporations or unions and in amounts exceeding perhaps $1 million or more, would enable federal candidates to become big-money power brokers and, therefore, would position the donors of these large-dollar soft-money contributions to win favors from the federal candidates. Consequently, given the intimate ties between federal candidates and the national committees of political parties, it is just as necessary to eliminate soft-money donations to national committees as it is to eliminate these donations to the candidates themselves. So that is precisely what BCRA did.

BCRA took a different approach, however, with respect to the soft-money activities of the state and local committees of political parties. Rather than banning these state and local committees from receiving soft money entirely, BCRA permits them to receive soft money if permitted to do so by state law, as long as they do not use any such soft money on four categories of activities that have the effect of influencing federal elections, which BCRA denominates as “federal election activities.” [8] (There are some complexities here, particularly involving the so-called “Levin Amendment,” but this description captures the essence of BCRA’s provisions regarding a party’s state and local committees.) BCRA adopted this more permissive approach for state and local committees in part because there is perhaps not quite so close a connection between them and federal candidates as there is between the national committees and federal candidates, and also in part because state and local committees have a stronger interest than national committees in being permitted to raise and spend money targeted specifically for state and local elections to the extent allowable by state law.

The party organizations that are plaintiffs in the case raise three principal objections to BCRA’s soft-money provisions. First, they claim that BCRA’s differential treatment of national and state or local committees prevents coordinated fundraising and spending with respect to even purely state or local election activities. Second, they claim that the scope of the partial soft-money ban on state and local committees is too broad because BCRA’s four categories of “federal election activities” embrace some practices that only marginally affect federal elections, yet substantially concern state or local elections. Third, the party groups further complain that BCRA unconstitutionally discriminates against them because BCRA’s soft-money rules impose constraints on them that are not applicable to non-party political organizations that engage in comparable election activities.

Coordinated Fundraising. Although BCRA leaves state and local parties free to raise and spend unlimited sums of soft money on activities specifically targeted to winning state and local elections (insofar as permitted by state law), BCRA denies the same to national committees. Likewise, BCRA prevents national committees from working with state and local committees to raise and spend soft money in the ways BCRA lets the latter groups do. The Republican National Committee (RNC), in particular, complains that this restriction on joint fundraising and spending violates the freedom of association protected by the First Amendment.

Quite clearly, however, if the total soft-money ban applicable to national committees is to be effective – as it must be to prevent Members of Congress from becoming unduly influenced by million-dollar contributions to the DNC and RNC, for the reasons already stated – then it is equally necessary that these national committees not participate in a joint enterprise of raising and spending such large-dollar contributions with their state and local affiliates. Conversely, if state and local committees really want the participation of national committees in their efforts to raise and spend money for activities targeted solely at winning state and local races, BCRA leaves them entirely free to enter this form of association with national committees – as long as the ensuing joint enterprise limits its fundraising practices to sources and amounts set forth in FECA. BCRA gives state and local committees the option of raising and spending FECA-noncompliant funds (i.e., soft money), but to exercise this option the state and local parties need to act in a way that is consistent with FECA itself, and being consistent with FECA means making sure that national committees – as proxies for the federal candidates themselves – follow FECA rules for all their fundraising. Requiring state and local committees to respect this constraint upon national committees, which is necessary to protect federal candidates from improper influence, is no more an infringement on constitutionally protected freedom of association than is FECA’s limit on a party’s spending in coordination with a candidate, which the Court sustained in Colorado II (based on the same need to protect federal candidates from undue influence secured by large-dollar donations).[9]

Federal Election Activities. BCRA requires state and local parties to use FECA-compliant (i.e., hard) money for four categories of activities that affect federal elections: (1) voter registration drives within 120 days of a federal election; (2) get-out-the-vote or other “generic” party-promoting efforts in connection with a federal election; (3) public communications that promote, support, attack, or oppose a federal candidate; and (4) work done by a party employee who devotes at least a quarter of paid time to federal elections.[10] The plaintiffs contend that these categories reach some activities that only incidentally affect federal elections yet simultaneously have great impact on state or local races. But this contention lacks merit. Voter registration drives in close proximity to a federal election necessarily will directly affect that election, as is true for get-out-the-vote or generic “support the party” messages at the time of a federal election campaign. In any event, even if there might turn out to be occasional circumstances in which the state electoral interest so far outweighed the federal electoral interest as to call for the unlimited use of soft money in the particular context (note here that the Levin Amendment already provides a built-in mechanism for the limited use of soft money on certain federal election activities), such a purely speculative possibility is no justification for facial invalidation of BCRA’s soft-money rules, which is what the plaintiffs seek.

In this regard, it is worth underscoring the strength of Congress’s interest in requiring that state and local parties finance their federal election activities with contributions that comply with FECA rules. There is no doubt that, if a corporation gives a $10 million contribution to a state or local committee to mount a year-long public attack against the opponent of the party’s Senate candidate, or to convince the state’s voters to turn up at the polls to support the party’s ticket “top to bottom,” should the party’s Senate candidate win the race and perceive this $10 million contribution to have been instrumental to the victory, then the very real danger exists that the candidate will feel beholden to this large-dollar corporate contributor, thereby causing the corporation to exert improper influence over the candidate once in office. Moreover, before BCRA, Congress watched the Commission try without success to develop a set of allocation rules that might attribute portions of funds used for joint federal/state election activities, like get-out-the-vote, in a way that accurately reflects the extent of their influence on federal and state elections. This allocation effort was an abject failure, in part because the same dollar used to convince the party faithful to go to polls is simultaneously fully effective with respect to both the federal and state races on the ballot, and thus the dollar cannot meaningfully be split between the two. (In other words, a $10 million get-out-the-vote drive is 100% influential with respect to both the Senate and Governor’s race on the same ballot, not 50% influential for each.) Congress, therefore, was entitled in BCRA to adopt a rule providing that any contributions used by state or local committees in ways that influence federal elections must comply with FECA’s source and amount limitations, in order to avoid federal candidates becoming (or appearing to become) beholden to the contributors of these funds, even if the same use of these funds by the state or local committees also influences state or local elections. In short, the necessity of protecting federal candidates from corruption (or the appearance thereof) by limiting the size and sources of contributions used to influence federal elections disables state law from providing that unconstrained contributions may be used instead.

The parties also complain about BCRA’s definition of “federal election activity” in one other respect. This complaint focuses on the third category, the one concerning messages that “promote, support, attack, or oppose” a candidate.[11] The parties contend that this category of communication is too broad and/or too vague to be permissible under the First Amendment, and instead the category must be confined to messages that “expressly advocate” a candidate’s election or defeat. This argument is related to the other major question in McConnell, concerning BCRA’s definition of “electioneering communication,” and we will return to it in that context. Suffice it to say here, however, that because political parties are entities designed to win elections, the risk of erroneously attributing an electoral motive to a party communication that “promotes, supports, attacks, or opposes” a candidate, and yet fails to “expressly advocate” the candidate’s election or defeat, is virtually non-existent, whereas it is a concern with respect to other organizations (which, unlike parties, are not inherently involved in electoral politics).

Comparable activities by non-party organizations. Party organizations, of course, are not the only ones that spend money in ways that influence elections. Other kinds of ideological organizations, or so-called “interest groups,” do as well. For example, we can imagine an organization called Citizens Against Regulatory Excesses (CARE) that is devoted to the causes of lower taxes, lower spending, and less regulation of American businesses, including the health care industry. We can also imagine CARE receiving a $10 million donation from a health care corporation to launch a year-long public attack on an incumbent Senator for supporting a “single paper” health care plan, which the industry thinks is excessively burdensome. We can imagine, too, that CARE saves some of the $10 million donation for a public message in the last weeks before the election that, without mentioning either candidate in this Senate race, urges the citizens of that state to go to the polls this year (because, in CARE’s view, the future of their ability to receive quality health care may depend upon it). Both forms of CARE’s spending – the year-long attack on a senatorial candidate and the get-out-the-vote message – are comparable to the kinds of spending that a state or local party might undertake, as we have seen. And if in the race in which CARE spends $10 million in this way the challenger defeats the incumbent who has been relentlessly attacked by CARE, then the challenger upon taking office may feel beholden to the corporation that gave the $10 million donation to CARE for this use – just as if the corporation had given it to a state or local party organization for a comparable use.

Yet, as plaintiffs in McConnell point out, BCRA does not impose the same constraints on the receiving and using of contributions by non-party organizations, like the hypothetical CARE, as it does on state and local party committees. At most, BCRA limits the ways the organizations finance a narrower category of “electoral communications” – only ones that occur 60 days before an election (or 30 days before a primary) and only ones that mention a candidate. Therefore, most of CARE’s year-long attack on a candidate would not be covered, nor would its get-out-the-vote message that did not mention a candidate. Thus, BCRA subjects the financing of election-related activities of state and local parties to limits having a broader scope than those imposed on non-party ideological organizations. This differential treatment, the parties contend, is unconstitutional discrimination.

This contention raises a preliminary question whether Congress could have imposed the same soft-money rules on non-party organizations that it imposed on state and local party committees. Perhaps political parties are a constitutionally distinct category of organizations – inherently devoted to winning elections – that can be subjected to especially rigorous campaign finance rules. Although such a position is not without some force, ultimately the better view is that Congress, given the right evidence, has the constitutional authority to adopt similar “soft money” rules for all organizations – not just parties – that devote a substantial portion of their activities to winning federal elections. After all, Congress already has imposed source and amount limitations on contributions to “political committees,” or PACs, defined as organizations whose “major purpose” is to influence federal elections[12] (thereby effectively confining PACs to FECA-compliant “hard” money). The Supreme Court has already upheld those limits on contributions to PACs.[13] The Supreme Court, however, has not yet had to decide whether PACs, or other political entities, that receive and deploy money ostensibly for purposes other than influencing elections may be limited in funds they receive and deploy in ways that, regardless of purpose, have the effect of influencing elections. Nonetheless, although technically a novel question, it would be but a modest extension of previous precedent for the Court to say that, with respect to any political organization that is substantially devoted to winning federal elections as a major part of its overall mission, the financing of any activities that actually do influence federal elections may be confined to FECA-compliant funds. (Likewise, if there ever were any non-party organizations that act as “alter egos” of the campaign committees of federal candidates in the way that the national party committees do, then there would be good reason to permit Congress to require such surrogates of the federal candidates to finance all their activities with FECA-compliant money.)

But even if Congress has the power to impose the same soft-money restrictions on certain non-party organizations as it does on party committees, it does not follow that Congress acted unconstitutionally in declining to exercise this authority. Congress acted as it did towards the party committees because it had superabundant evidence that the parties were abusing soft money and, as a result, federal candidates and officeholders were coming under the improper influence of soft-money donors.[14] In other words, Congress addressed the problem at hand. If and when Congress ever sees comparable evidence of abuse and corruption from soft-money fundraising by non-party organizations, Congress will need to consider whether the evidence warrants an extension of BCRA. But the fact that Congress did not extend BCRA so far initially does not render BCRA unconstitutional. On the contrary, it shows that BCRA was carefully constructed and well tailored to the immediate problem facing Congress. The difference in available evidence, plus the inherent difference between parties and other political organizations (including the fact that only parties place candidates on the ballot for election), more than justifies Congress’s decision to adopt different campaign finance rules for these different types of organizations, thereby defeating any claim of an Equal Protection violation.

Electioneering Communications While the soft-money provisions of BCRA address the problem of large-dollar and corporate or union contributions to political parties, the “electioneering communications” provisions address problems that arise when corporations or unions, or individuals in large-dollar amounts, undertake their own spending to support or oppose candidates. The problems here are several and have been previously recognized by the Supreme Court. First, independent spending in support of a candidate, while not posing as great a risk of corrupting the candidate as contributions directly to that candidate, nonetheless still presents some of the same risk that the candidate will be susceptible to undue influence because of this financial support.[15] Second, corporate and union spending from their own general-treasury funds to support or oppose candidates artificially distorts public debate about the candidates, because the general-treasury funds that corporations and unions obtain to serve the economic interests of their shareholders and members do not necessarily reflect the views of these shareholders and members concerning which candidates should win election.[16] And, third, if the identity of individuals (or non-profit ideological groups) who engage in large-dollar spending in support of candidates is unknown to the public, then not only will voters be hindered in evaluating the messages of support that these sponsors broadcast with their spending, but also it will be much more difficult to make sure that this spending is not coordinated with a candidate’s campaign – coordination which would amount to a form of in-kind contribution presenting all the extra risks of corruption associated with such contributions, especially when made by corporations or unions.[17]

Because of these problems, Congress long ago adopted two forms of regulation with respect to independent spending in support of, or opposition to, a federal candidate’s election. One is to require disclosure of the identity of those who engage in such spending and the amounts they spend. The other is to prohibit the use of a corporation’s or union’s general-treasury funds to pay for such spending and to require, instead, that corporations or unions set up separate accounts funded with contributions from individuals for the specific purpose of political activities.

The Supreme Court, moreover, has sustained the constitutionality of both forms of regulation.[18] Given the particular statutes and facts involved in those previous cases, however, the Court sustained these statutes only insofar as they applied to spending for communications that “expressly advocate” a federal candidate’s election or defeat.[19] Thus, the question presented in McConnell v. FEC is whether either or both forms of regulation is constitutional, not just with respect to “express advocacy,” but with respect to a broader category of “electioneering communications,” which is defined as broadcasts that refer to a federal candidate and are targeted to the candidate’s electorate within 60 days of an election or 30 days of a primary.[20]

The reason Congress adopted the broader category of “electioneering communications” is that the narrower category of “express advocacy,” at least as it had been interpreted by the lower federal courts, had rendered ineffective both forms of regulation (disclosure and the source restriction – i.e., the requirement that corporations and unions use separate accounts rather than general-treasury funds). Based on a footnote in Buckley, which was dicta illustrating a few examples of “express advocacy,”[21] the lower federal courts fashioned a straightjacket requirement that even messages blatantly supporting or opposing a candidate’s election are not subject to either form of regulation unless they contain a phrase saying “vote for” or “vote against” the candidate (or words exactly synonymous with this phrase, like “elect” or “defeat” the candidate). Yet the “vote for” or “vote against” phrase was entirely disposable without any loss to the electioneering message conveyed by campaign advertising. If there is any doubt on this point, one need only examine the four specific advertisements in Chamber of Commerce v. Moore, in which the U.S. Court of Appeals for the Fifth Circuit acknowledged the obvious electioneering message of the ads, but held them completely immune from regulation because they did not contain the magic “vote for” phrase.[22] Consequently, to restore the efficacy of its disclosure and source restriction rules, Congress needed to adopt a new definition of “electioneering communications” that was not confined only to messages containing the easily avoidable “vote for” or “vote against” phrase.

In order to make the new category of “electioneering communications” both effective and extremely precise, thereby avoiding the vagueness problems of the previous statutes (which had caused the Court to confine their scope to “express advocacy”), Congress made its new definition dependent on entirely objective criteria: (1) the reference to a federal candidate in the message; (2) the broadcast of the message to geographically specified audience; and (3) the timing of the broadcast with a date-specific period. As a consequence of using solely objective criteria, the new definition inevitably will capture some messages that mention a candidate’s name yet do not demonstrably support or oppose the candidate’s election, but instead appear to discuss the candidate solely in the context of asserting a viewpoint on a political issue. How many such messages will be encompassed by the definition once it goes into effect is the subject of dispute, including a dispute concerning the evidence submitted on this point in the case. But one thing is perfectly clear: any alternative to Congress’s objective definition would come at a serious cost to either the efficacy of its previously sustained disclosure and source rules or the precision of those rules’ scope or both.

Given all this, the Supreme Court essentially confronts four options with respect to the plaintiffs’ claim that the new definition is unconstitutional because it encompasses some messages that, despite referencing a candidate, lack electioneering content:

(1) overrule its prior precedents sustaining the constitutionality of the disclosure and source rules insofar as they applied to “express advocacy”;

(2) leave those prior precedents in place, while refusing to extend their scope beyond “express advocacy,” as limited by the lower federal courts to messages containing a “vote for” or “vote against” phrase (or an exactly synonymous phrase, like “elect” or “defeat”);

(3) invalidate the new objective definition of “electioneering communication” as overly broad, yet simultaneously explain that the scope of “express advocacy” is not rigid and hyper-formalistic as the lower federal courts have believed;

(4) sustain the new objective definition as carefully tailored to achieve the combined objectives of efficacy and precision, both of which are constitutionally compelling interests (protecting the integrity of the electoral process, as recognized in the Court’s prior precedents sustaining the disclosure and source rules, and providing the sponsors of broadcast messages crystal-clear notice of when these rules apply).[23]

In choosing among these four options, the Court should not overrule its past precedents. The reason is that the precedents were premised on a sound appreciation of the important values served by disclosure of spending to support or oppose a candidate’s election, as well as restricting such spending to funds provided by individuals specifically for political purposes (rather than corporate or union general-treasury coffers, which are filled because of the economic agendas they pursue). Indeed, the disclosure requirement was sustained in Buckley itself, and McConnell v. FEC should be a vehicle for implementing the basic framework adopted in Buckley, not undoing it. Likewise, the authority of Austin v. Michigan Chamber of Commerce,[24] the case sustaining the source restriction on spending to support or oppose a candidate’s election, was reconfirmed less than three months ago, in FEC v. Beaumont.[25] Although a case about corporate contributions to candidates, rather than independent spending in support of candidates, Beaumont specifically invoked Austin to reaffirm the basic proposition that corporate general-treasury funds should not be used to promote a candidate’s election. It would be odd, indeed, were the Court later this same year to reverse course and proclaim that, contrary to Beaumont, Austin was wrongly decided.

The Court’s second option would be intellectually dishonest. As just stated, the Court predicated its precedents sustaining the constitutionality of the disclosure and source requirements on the grounds that these regulations actually would be effective in serving important governmental interests. If the Court were to reaffirm the validity of those precedents yet confine their applicability only to cases where messages contain a “vote for” or “vote against” phrase, the Court would be depriving the regulations it previously sustained of any practical force whatsoever, thereby essentially overruling its precedents without admitting to do so. These regulations cannot be both constitutional because they serve important governmental goals and yet, at the same time, be rendered entirely nugatory in their actual operation. For the Court to put itself in this position would be self-delusion tantamount to the Emperor’s invisible wardrobe.

The third option has some merit, for it has the virtue – at least in theory – of limiting the disclosure and source restrictions to only those broadcasts containing messages that support or oppose a candidate’s election, thereby excluding from the scope of these regulations those broadcasts that merely contain a non-electioneering reference to a candidate in the context of discussing a policy issue. And for the Court to embrace a functional rather than formalistic conception of the “express advocacy” standard would be consistent with the Court’s recent emphasis on the need for functional rather than formalistic understandings of operative campaign finance terms and principles.[26] The inevitable difficulty with a functional understanding of “express advocacy,” however, is that its implementation would require close attention to the overall content, including nuance, of particular broadcasts to determine whether or not their reference to a candidate conveyed a message supporting or opposing the candidate’s election. The total content of each broadcast to be evaluated would include not just its spoken words, but the tone of those words, as well as accompanying music and visual imagery. Inevitably, there would be disputes at the margin whether a particular broadcast was properly classified as electioneering or not, based on its overall content. Add to this the possibility that, to determine functionally whether a broadcast conveys a message supporting or opposing a candidate’s election, it might be necessary – at least in some cases – to consider not just the broadcast’s content, but its context as well. (In other words, the conditions and circumstances surrounding its broadcast.) The result would be a case-by-case, intensely fact-specific jurisprudence of “express advocacy” not unlike the “endorsement” test the Court presently uses to determine whether the government’s official communications, including symbolic expressions, convey a message that supports or opposes a religious belief.[27] This “endorsement” test, too, has its virtue as means of implementing the Establishment Clause value of governmental impartiality on matters of religious belief. But, as the Court’s own application of this “endorsement” test demonstrates, it cannot offer super-clear precision (and hence highly predictable implementation) as being among its virtues.[28]

That leaves the fourth option, which is certainly not without its own costs. The consequence of sustaining the constitutionality of Congress’s new objective definition of “electioneering communication,” it must be admitted, is that some broadcasts would be subject to disclosure and the source restriction even though these broadcasts mention a candidate in a way that does not support or oppose the candidate’s election. But this consequence, although real, does not seem too high a price to pay for preserving the efficacy of the disclosure and source regulations and providing crystal-clear precision concerning the operative scope of those regulations. Disclosure serves First Amendment values, insofar as it provides relevant information to voters about who engages in public discussion of candidates during the election campaign. And even if the disclosure rule reaches some broadcasts that do not appear to take a position on whether the candidate should win or lose, it embraces – by virtue of the objective definition of “electioneering communication” – only messages that discuss a candidate when broadcast to the electorate at a time shortly before the election. These discussions of a candidate, in close geographic and temporal proximity to the election itself, are likely to be highly relevant to the voters’ deliberations about the merits of the candidate. Thus, disclosure of who is providing this highly relevant discussion about a candidate, in broadcasts to the electorate just before the election, adds to the electorate’s knowledge of information pertinent to its deliberation about which candidate to choose at the polls. This additional democracy-enhancing information, far from being considered “collateral damage” from an overly broad definition of “electioneering communication,” can and should be seen as a collateral advantage.

Similarly, the source restriction serves First Amendment values, by having the public discussion of candidates funded by money collected from individuals for political purposes, rather than this democratic deliberation being distorted by messages paid for with corporate or union treasuries that were amassed to serve narrow economic self-interests. Again, even if the source restriction covers messages that were not intended to advocate which candidate should win or lose, it reaches only messages that discuss the candidates and are sent to the electorate at precisely the time the electorate is deliberating about which candidate should win or lose. It does not disserve the First Amendment to require that these messages, which are highly relevant to the electorate’s democratic decision-making process, be funded with money received from individuals rather than corporate or union treasuries. On the contrary, this requirement enhances the democratic character of the public discussion about the merits of the competing candidates, on the basis of which the electorate will make its choice.

To be sure, were the disclosure and source rules to stray too far from their democracy-enhancing justifications, with the result that their scope extended beyond candidate-specific communications to the electorate immediately before the election, then their constitutionality would indeed be problematic. But Congress carefully structured the new definition of “electioneering communication” so that it would reach only messages that were truly election-specific even if not necessarily electoral in intent. Thus, on balance, the new objective definition should be sustained as carefully circumscribed in scope and, by virtue of that scope, conducive to the enhancement of the electorate’s democratic deliberation about whom to choose to govern the Nation.

Even if the Court does sustain the objective definition on this basis, however, there remains the question about the third category of “federal election activities” that defines the scope of the partial soft money limitation applicable to state and local parties (a question we left somewhat hanging, above). This third category – which, as we will recall, covers communications that “promote, support, attack, or oppose” a candidate – is both much broader than the definition of “electioneering communication” in Title II and not nearly so precise. As to its breadth, that point as already been addressed by the observation that any communication by a political party that in fact does “promote, support, attack, or oppose” a candidate can properly be attributed with an electoral motive, since political parties – unlike independent non-party organizations – are in the business of winning elections.

But, regarding the less-than-perfect precision of this standard, will a political party always know whether a particular reference to a candidate in one of its communications conveys a message that the party “promotes or supports” or “attacks or opposes” that candidate? Here the proper response to this potential objection is that, when parties engage in communications that discuss candidates, it is appropriate that they bear the burden of any ambiguity on whether this reference is a positive or negative position on the candidate, or instead is neutral about the candidate. It is appropriate that parties bear this burden of ambiguity because, given their inherently electoral nature, it is much more likely that, any time a party refers to a candidate in a communication, that reference itself will be electoral in nature.

Moreover, the only consequence of the parties having to bear this risk of ambiguity is that, when in doubt, they must finance their public discussion of candidates with contributions that comply with FECA’s amount and source limitations. But it is a good thing to require parties to use FECA-compliant money when they themselves think that their public messages about candidates could be seen as statements supporting or opposing the candidate, because these messages could have the same effect as less ambiguous ones, causing candidates to become beholden to donors who might wish to bankroll such party communications with large-dollar or corporate or union funds. If the voters perceive these messages as supporting or opposing a candidate, and these messages are effective at winning elections (as the parties presumably intend them to be), then the risk of undue influence from soft-money funding of these messages is readily apparent. Accordingly, even if non-party organizations that are not inherently electoral in their missions cannot be made to bear the risk of ambiguity that their references to candidates might be statements of electoral support or opposition, it is constitutionally permissible to require parties to bear this risk when the consequence is merely a limitation on the contributions permissible to finance their ambiguous references.

The Court’s Deliberations Given the foregoing arguments concerning the constitutionality of BCRA with respect to both its soft-money and “electioneering communications” provisions, the question inevitably arises how these arguments will fare in the Court. In particular, as the Court itself prepares for the oral argument on September 8, what thoughts and questions will arise in the minds of the various Justices? How undecided are each of them likely to be on the major issues in the case as they take the bench that morning, and what questions and points are they likely to raise at oral argument that might give observers any kind of hint at what the outcome of the case might be? Inevitably, these inquiries are highly speculative, but it is possible to make some tentative observations.

First, given the past decisions of the Court concerning various campaign finance cases, it is no secret that (as a general matter, subject to inevitable exceptions) the nine Justices fall roughly into three different groups on these issues. On the one hand, there are those – most notably Justices Scalia and Thomas – who are highly skeptical of any campaign finance regulation apart from disclosure.[29] On the other, there are those – Justices Stevens and Ginsburg, in particular – who are especially receptive to justifications offered for campaign finance regulations.[30] In the middle, holding the balance of power at the Court on these issues, are the rest of the Justices. The Chief Justice is in the middle on these cases, given his previous opinions,[31] as is Justice O’Connor.[32] So, too, are Justices Souter and Breyer, although the gap between these two and Justices Stevens and Ginsburg is not necessarily all that great.[33] Justice Kennedy, at times, has expressed uncertainty about what the constitutional jurisprudence of campaign finance regulation should be, but he is likely to end up in a skeptical position not too distant from Justices Scalia and Thomas.[34]

As the Justices sit down to read the briefs (as presumably they have started to do already), they all genuinely will be open to the possibility of being persuaded by the arguments offered by either side. This openness to persuasion is likely to be true for most Justices in most cases, but it will be especially true in a case of this magnitude. Even a Court that has become quite comfortable in invalidating Acts of Congress with regularity, especially when First Amendment or federalism claims are raised, will pause and consider the enormity of nullifying a major, decade-long congressional effort to overhaul the system of campaign finance for federal elections, given that it represents the collective wisdom of America’s elected representatives – after great deliberation – on basic structural issues concerning the operation of American politics.

But as the Justices familiarize themselves with the issues and arguments, questions inevitably will arise in their minds. Initially, most of them will be inclined to feel more comfortable with the new soft-money rules than with the new definition of “electioneering communication,” at least insofar as the latter forms the basis for extending the preexisting source restriction (rather than the preexisting disclosure requirements). This difference, of course, is based on the well-known distinction between contribution and spending limits set forth in Buckley and repeatedly reaffirmed in the Court’s most recent campaign finance cases. The Court likely (and, if so, correctly) will perceive the new soft-money rules as contribution limits, even those applicable to state and local parties, despite the fact that the statute does not prohibit state and local parties from receiving soft money but only from “expend[ing]” it on “federal election activities.”[35] The reason that the Court likely will recognize this soft-money rule to be a contribution limit is because it functionally operates as one: the root concern is the party’s receipt of unrestricted soft-money contributions for activities affecting federal elections, not the party’s own spending of money for these activities. As long as the party receives the right sort of contributions and not the wrong sort of money to pay for these activities, the party can spend as much as it likes. Thus, this new soft-money rule pinches only the giving and receiving of donations, from certain sources and above certain amounts, and does so because otherwise these donations would present an excessive danger of corrupting federal candidates.

Although there is some superficial similarity between this new soft-money restriction on state and local parties, and the source restriction that prohibits using corporate or union treasury funds to pay for “electioneering communications,” the latter is properly classified under Buckley as an expenditure limit (in contrast to the former) because there is no regulatory concern here about a corporation’s receipt of shareholder investments and customer profits or a union’s receipt of membership dues. Rather, the regulatory concern is solely the corporation or union’s use – i.e., spending – of general-treasury funds for electioneering. Consequently, the Court will have a greater concern that this restriction on spending for political messages presents a First Amendment problem.

Once the Court is deep into the question of the new “electioneering communication” definition’s constitutionality, however, the Court is likely to better appreciate Congress’s decision to adopt this objective definition. The Justices in the middle of the Court, who will decide the outcome on this question (as on others), are practical people. Accepting that Congress is constitutionally empowered to adopt a source restriction with respect to corporate spending for electioneering messages, as the Court itself previously held in Austin, and recognizing that – as a practical matter – the scope of this source restriction cannot be eviscerated by confining the category of electioneering messages to solely those containing a “vote for” or “vote against” phrase, the Court will focus its attention on how best to achieve a workable rule. The Justices are likely to struggle in their minds between, on the one hand, articulating a functional rather than hyper-formalistic conception of “express advocacy,” but limiting the scope of the source restriction to “express advocacy” so understood, versus, on the other, sustaining the new objective definition of “electioneering communication” as Congress adopted it. It is difficult to say with great confidence which of these alternatives is more likely to prevail, and the Justices themselves may well not know until, after oral argument, they have had a chance to ponder once more the balance of competing considerations regarding these two alternatives. Indeed, one can reasonably expect that most of the questions at oral argument, especially from the Members of the Court who occupy the middle-ground position, will focus on teasing out the pros and cons of these two alternatives. It is a fair prediction, however, that in the end the majority of the Court will issue a decision that enables the Government to enforce a source restriction of meaningful scope, so that it does not – in an exercise of self-mockery – leave Austin standing as an empty charade.

Conversely, once the Court digs deeper into the soft-money side of the case, many Justices may feel somewhat more perplexed than they initially thought they would be. The reason is that they will be asking themselves whether there is a constitutional principle that identifies those circumstances in which soft-money restrictions are permissible as compared to those in which they are not. The Justices may feel quite comfortable that the particular soft-money rules in BCRA easily fall on the permissible side of the line, wherever it might be, but they still will want to explore in their minds – if only to figure out how best to write an opinion sustaining the constitutionality of these rules – what sort of criteria will determine the constitutional dividing line.

Here is where matters get a bit tricky. First of all, since different soft-money rules apply to national committees, compared to state and local party committees, is it always possible to tell the one from the other? Apparently, the two major parties each have three national committees, but is this a closed set under the statute, or might others exist in the future if they meet certain criteria, and if so what are those criteria?

Likewise, since the soft-money rule applicable to state and local parties applies only to some activities – again, those four categories that the statute collectively defines as “federal election activities” – did Congress exercise the full extent of its constitutional authority in this regard? Or could Congress have extended the scope of the soft-money restriction applicable to state and local parties, perhaps even all the way to the total soft-money ban applicable to national committees? What set of constitutional principles answers any such questions concerning the outer limits of congressional authority over contributions to state and local political parties? Are these principles exclusively rooted in the First Amendment, or do they also derive from the Tenth Amendment or the Constitution’s structural commitment to federalism?

And if these questions were not enough to set a Justice’s (or law clerk’s) head spinning for a while, there is also the question – as we have already seen – whether the Constitution would permit the extension of BCRA’s soft-money rules to non-party organizations. If so, which ones, and upon what showing? Would the scope of constitutionally permissible soft-money limits on non-party organizations be the total ban applicable to national committees, or the partial ban applicable to state and local parties, or some other scope, and would the answer to this question differ for different categories of non-party organizations?

BCRA’s soft-money rules, in short, present the opportunity for a field day devoted to these sorts of intellectual exercises. And we can expect oral argument on the soft-money side of the case to be dominated by these kinds of questions, not just for sport (although the Court will enjoy pitching these curve balls and sliders to some of the Nation’s most experienced and talented advocates, to watch the dexterity with which they handle them), but because the Justices genuinely want to understand the constitutional architecture of campaign finance regulation. All of campaign finance law, as Buckley itself recognized, is premised on the idea that there are regulations that are permissible for Congress to adopt in the interest of protecting against corruption (and the appearance thereof) in contrast to regulations that would be impermissible even pursuant to this compelling interest. Resolving the constitutionality of BCRA’s soft-money rules requires that the Court at least venture into the domain of how to demarcate that boundary, even if the Court need not fully delineate the boundary in this case.

In the end, whatever uncertainties the Justices may have in this regard, the majority is likely to uphold the validity of BCRA’s soft-money rules, because invalidating them – as the plaintiffs’ arguments so clearly reveal – would require that the Court accept a boundary line around the permissible zone of regulation so constrictive as to render Congress’s power to thwart corruption (and its appearance) as essentially a dead letter. For, at bottom, the plaintiffs would have it that Congress can regulate contributions only if given specifically for the purpose of influencing federal elections, and they insist that the only way to know whether they are given for this purpose is when they are used for “express advocacy,” narrowly and hyper-technically construed to mean only messages containing “vote for” or “vote against” language. Under this scenario, however, favor-seeking donors – including corporations and unions – would be able to give political parties contributions in unlimited amounts to be used for campaign ads that do all but say “vote for” or “vote against” a candidate, effectively conveying the same electioneering message without these easily dispensable words. The dangers of corruption (not to mention its appearance) from such a “sky’s the limit,” “anything goes” soft-money system is all too obvious, especially in light of what occurred in the 1990s when the two major parties and their large-dollar donors thought this to be the state of the law.

Accordingly, wherever the constitutional dividing line may be, it is not where the plaintiffs would put it. Instead, the Court is likely to accept the proposition that political parties are inherently electoral organizations, with inextricably close ties to the candidates they put on the ballot, and thus contributions to parties may be subject to source and amount restrictions regardless of what specific use by the party the contributor may have intended. The Court is likely to think that BCRA’s soft-money rules may be sustained largely on the basis of this proposition and hence, ultimately, the Court can feel free to leave for another day the question whether similar soft-money rules may be extended to certain categories of non-party organizations.

Conclusion There has never been another case like this one, not even Buckley itself. For one thing, this case challenges the fortitude of the Court in the way that Buckley did not. The evidentiary record here far surpasses what the Court had before it in Buckley. But the Court is conscientious, and it will tackle this record to the extent necessary to render judgment on whether Congress was justified in adopting the legislation that it did.

The case is different from Buckley, moreover, in that here the Court is not having to establish the first principles of campaign finance law, as Buckley essentially was. Instead, building on Buckley itself, the Court here is figuring out how to implement those first principles and make them work. While this second-generation enterprise might not be as scintillating as “being present at the creation,” it is ultimately more significant. As most astute observers of contemporary constitutional law know well, the real work of constitutional law – especially with this detail-oriented Supreme Court – is done at the level of implementing general principles through the application of more specific “second-order” tests and rules. Abstract pronouncements – like “the Government can prevail if it has a compelling interest” – tend not to get one very far towards determining what is the operative constitutional law regarding a particular topic. By contrast, a more specific proposition – like “the avoidance of corruption, defined as undue influence on the deliberations of officeholders, is a compelling governmental interest” – gets one much farther down the road.

McConnell v. FEC, while unlikely to be the end of the road with respect to campaign finance legislation (or litigation), is likely to take us a long way on this journey. In doing so, it will provide the Nation considerable guidance, not only on the specific campaign finance questions at hand, but also on the Court’s approach to a constitutional case of fundamental importance. Moreover, insofar as the Court speaks for the Nation as a whole when it resolves a constitutional dispute concerning the basis structure of American government and politics – as this case undoubtedly involves – the Court’s decision represents a major step in our Republic’s ongoing process of self-definition.

[1] Scott v. Sanford, 60 U.S. 393 (1856).

[2] 410 U.S. 113 (1973).

[3] 531 U.S. 98 (2000).

[4] 424 U.S. 1 (1976) (per curiam).

[5] P.L. 107-155, 166 Stat. 81 (Mar. 27, 2002).

[6] In reporter form, the district court decision spans “only” 742 pages. McConnell v. FEC, 251 F.Supp.2d 176 (D.D.C. 2003).

[7] 2 U.S.C. § 431(8)(A)(i).

[8] 2 U.S.C. § 441i(b)(1).

[9] The case referenced in the text is FEC v. Colorado Repubican Federal Campaign Committee, 533 U.S. 431 (2001), the second of two U.S. Supreme Court decision concerning the constitutionality of FECA rules concerning spending by political parties. The two decisions draw a constitutionally operative distinction between party spending in coordination with a candidate, which as a form of contribution to the candidate may be limited in amount, and party spending that is truly independent from the activities of the party’s own candidate (in that case before the party’s candidate was even nominated), in which case it may not be subject to a ceiling.

[10] 2 U.S.C. § 431(20)(A).

[11] This provision is in subsection (iii) of 2 U.S.C. § 431(20).

[12] See Buckley, 424 U.S. at 79.

[13] California Medical Ass’n v. FEC, 453 U.S. 180 (1981).

[14] This evidence is summarized, with citations to the record, at pages 12-16 of the brief filed by the Intervenor-Defendants in the Supreme Court (available on web at http://www.campaignlegalcenter.org/attachment.html/defbrief.congsponsors.redacted.pdf?id=894).

[15] See First National Bank of Boston v. Bellotti, 435 U.S. 765, 787 n.26 (1978).

[16] See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 659-660 (1990).

[17] See Buckley, 424 U.S. at 66-69.

[18] Austin, 494 U.S. at 668-669 (source restriction); Buckley, 424 U.S. at 80-81 (disclosure).

[19] See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 249 (1986) (limiting federal source restriction, 2 U.S.C. § 441b, to express advocacy); Buckley, 424 U.S. at 79-80 (limiting federal law requiring disclosure of independent expenditures to express advocacy).

[20] 2 U.S.C. § 434(f)(3)(A)(i). BCRA also contains a backup definition of “electioneering communication” in case the primary one is ruled unconstitutional. The briefs in the Supreme Court, however, largely ignore the backup definition, and this article will do likewise on the ground that the Court could achieve essentially the same result as the backup definition by explaining that “express advocacy” is a functional – not formalistic – concept.

[21] 424 U.S. at 44 n.52.

[22] 288 F.3d 187, cert. denied, 537 U.S. 1018 (2002). The Fifth Circuit unabashedly observed that its decision was contrary to a “commonsense understanding of the message conveyed by the television political advertisements at issue.” Id. at 198-199. For further discussion of this case and its relevance to McConnell, see Foley, “Smith for Congress” and Its Equivalents: An Endorsement Test under Buckley and MCFL, 2 Election L.J. 2 (2003).

[23] Sustaining the statute as carefully crafted in this way, thereby rejecting the plaintiffs’ facial challenge to the statute’s validity, leaves open the possibility that, despite being carefully crafted, its applicability in some particular situations would be impermissible. As such instances could be addressed in future “as-applied” challenges to the statute’s enforcement in those circumstances. Elsewhere, I have explained at greater length the reasons to sustain the objective definition as “narrowly tailored” as well as discussed the relationship of the facial and as-applied challenges to the definition. See Foley, “Narrow Tailoring” is not the Opposite of “Overbreadth”: Defending BCRA’s Primary Definition of “Electioneering Communication,” 2 Election L.J. ___ (forthcoming Oct. 2003) (available on the web at http://www.liebertpub.com/ELJ/Foley.pdf).

[24] 494 U.S. 652 (1990).

[25] 123 S.Ct. 2200 (2003).

[26] See Colorado II, 533 U.S. at 443.

[27] See, e.g., County of Allegheny v. ACLU, 492 U.S. 573 (1989) (using “endorsement” test to adjudicate the constitutionality of two different winter holiday displays, one involving a crèche, the other a menorah and Christmas tree).

[28] In County of Allegheny, while a majority of five Justices agreed that the crèche violated the endorsement test, only three thought that menorah-and-Christmas-tree display did as well. The outcome of that case, concerning the latter display, was controlled by the swing votes of Justices Blackmun and O’Connor, who did not think that it was an endorsement of religion (although even these two could not agree on precisely why).

[29] See Beaumont, 123 S.Ct. at 2212.

[30] See Colorado I, 518 U.S. at 648.

[31] See, e.g, MCFL, 479 U.S. at 266.

[32] See Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 221 (1998).

[33] Justice Souter wrote the opinion for the Court in Beaumont, Colorado II, and Shrink Missouri, the Court’s three most recent campaign finance cases, all of which upheld various forms of contribution limits on the ground that they are instrumental in thwarting undue influence and the appearance of corruption. Justice Breyer, joined by Justice Ginsburg, wrote a potentially significant concurrence in Shrink Missouri in which he explained that constitutionally significant interests are on both sides of the balance in campaign finance cases and that the resolution of each case requires close attention to the particular facts involved. 526 U.S. at 399.

[34] See Beaumont, 123 S.Ct. at 1211.

[35] 2 U.S.C. § 441i(b)(1).

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