A Crack In The Edifice Of Campaign Finance Reform

In a few hours, or perhaps just a few more days, the Supreme Court will hand down its decision in Wisconsin Right to Life v. The Federal Election Commission.

WRTL challenged the "electioneering communications" provision in the '03 campaign finance law revision known as BCRA, or, to most conservatives and the press, McCain-Feingold. The law prohibits incorporated entities like Wisconsin Right to Life from using its general treasury funds to run television or radio ads within 30 days of a primary or within 60 days of a general election if those ads specifically refer to a candidate for federal office.

James Bopp, Jr., WTRL's lawyer and a regular Supreme Court litigant on behalf of conservative causes, has freely admitted that WTRL intended to challenge that provision,when,in the summer of 2004, the group ran an ad urging viewers to contact both of Wisconsin's senators -- Herb Kohl, who was not up for re-election and Russ Feingold, who was -- and command them not to filibuster judicial nominees

WTRL asked the FEC that summer for a "grassroots exception" to BCRA because the authors of BCRA presumably never intended for the provision to apply to legislative advocacy groups like WRTL. The FEC said no, and three years later, the Court is on the cusp of the decision. (The court will also decide whether litigants can bring "as applied" challenges because SCOTUS already ruled on BCRA's constitutionality in general. But that's not germane here.)

Court watchers are convinced that with Justice Sam Alito on the bench, a majority exists to order the FEC to rewrite that part of the legislation.

The decision will probably be narrowly tailored, but it may well include a roadmap for future challenges to BCRA itself. That's what worries advocates of campaign finance reform.

The genius of Bopp's case is how careful WTRL navigated these waters. The ad did not refer to a candidate in a very contested race; it refered to a specific Congressional action that was under consideration; the ad did not mention the candidate's party affiliation; it did not even imply that they were on the wrong side of the issue.

Watch to see how Mitt Romney, once a supporter of campaign finance reform and now a vocal critic, and arch-nemesis McCain handle themselves in the aftermath. Mr. Bopp is now a senior adviser to Romney, and hatred for campaign finance reform is, of course, one of the prime cri de coeurs of the conservative movement in Washington.

In February, Bopp engineered a resolution at the Republican Naitonal Committee winter meeting expressly condemning McCain's law.

Another '08er worth watching is Fred Thompson, who worked hand in glove with McCain on the campaign finance issue in Congress. Thompson has given hints that he doesn't support the entire BCRA law but otherwise has not repudiated his own particiation in the entire enterprise.