Commenting on today’s decision on campaign financing (WRTL v. FEC), Richard Pildes highlights how a seemingly technical insistence on the protection of “issue ads” may undo the whole edifice of regulation:
[T]he analogy to the regulation of pornography is hard to miss here; there, the Court held that as long as sexual material had any other “redeeming social value,” the First Amendment protected it. In consequence, we saw the birth of x-rated films that offered just a bit more than unadulterated scenes of sex. Now, we are likely to see a return of the kinds of ads we saw before McCain-Feingold: ads that contain a fig-leaf of reference to issues that is just enough to give them constitutional protection, even if the ads are close to hard core efforts to influence election outcomes.
Expect more Swift Boatings and character assassinations, bedizened by fleeting mentions of “the issues.”
Commentators in the “thick of it,” far more knowledgeable on the topic than me, have declared WRTL a “sea change,” effectively repudiating the landmark McConnell decision that was only reached four years ago. But I have a sense the seeds for WRTL were sown about 30 years ago in Buckley, the leading case on campaign finance. Consider this ringing declaration from the 1976 Buckley opinion:
[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.
As soon as that point is capitulated, campaign finance reform becomes (to borrow a Borkian turn of phrase) a policy at war with itself. We already have anti-bribery laws to prevent quid pro quo exchanges of dollars for favors. Campaign finance regulation’s raison d’etre is to prevent the conversion of economic into political power. Buckley declared that rationale unconstitutional, and no advocacy is brilliant enough to evade those confines. Trying to argue for effective campaign finance regulation within the confines of Buckley is like trying to compose an epic in a villanelle: the form itself defeats the meaning one would give it.