Reading Tea Leaves in Federal Election Commission V. Wisconsin Right to Life: Hope for a Buckley Evolution?

Abstract:     
During its 2006-07 Term the U.S. Supreme Court decided Federal Election Commission v. Wisconsin Right to Life, Inc., the latest in a long line of cases sprouting from the seminal 1976 First Amendment campaign finance case, Buckley v. Valeo. In Wisconsin Right to Life, the Court concluded that Section 203 of the federal Bipartisan Campaign Reform Act of 2002, prohibiting the use of corporate funds to finance "electioneering communications" during a specified pre-election period, constituted an as-applied violation of a non-profit corporation's free speech rights.

Wisconsin Right to Life offers useful insights into the Roberts Court's thinking on the lively question of the propriety of legislative efforts to regulate the financing of political campaigns. On one hand the case demonstrates a Court properly skeptical of laws proscribing constitutionally-protected individual rights (here freedom of expression); on the other, a focused parsing of the principal, concurring, and dissenting opinions uncovers the potential for a coalition of Justices able to undertake the necessary work of evolving Buckley into a socially-legitimate constitutional regime equipped to address meaningfully the especially invidious aspects of Big Money in modern politics. This essay offers thoughts on both themes.

Number of Pages in PDF File: 12

Keywords: constitutional law, constitutional theory, campaign finance, buckley v. valeo, first amendment, judicial review, judicial legitimacy, FEC v. Wisconsin Right to Life.

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