The Oath (24 page)

And Watergate, and its legislative fallout, brought the Supreme Court into the thick of the issue.

Shortly after the new law went into effect, a group of politicians, including James L. Buckley, then a senator from New York, and Eugene McCarthy, the former senator and presidential candidate, challenged the new rules as unconstitutional. To this point in the Court’s history, few decisions dealt with the constitutionality of campaign finance regulation. The Tillman Act was never directly tested in the Supreme Court, and no one questioned the right of the federal government to restrict corporate political spending. But the 1974 reforms were challenged in court, and the resulting decision, known as
Buckley v. Valeo
, issued in 1976, has gone down in history as one of the Supreme Court’s most complicated, contradictory, incomprehensible (and longest) opinions.

No one really knows who wrote it. It is signed per curiam—“by the Court”—a label the justices usually use for brief and minor opinions. In
Buckley v. Valeo
, however, the Court used it to signal a team effort of sorts. William Brennan is generally regarded to have written much of
Buckley
, but Brennan’s biographers note that sections were also composed by
Warren Burger, Potter Stewart, Lewis Powell, and William Rehnquist. Not surprisingly, in light of the multiple authors, the opinion is a product of several compromises. To add to the confusion, five justices also wrote opinions concurring in part and dissenting in part from the majority. (A quarter century later,
Bush v. Gore
was another per curiam opinion by the Court that reflected poorly on the institution.)

It is possible, however, to extract some meaning from the dog’s breakfast that is
Buckley v. Valeo
. At the heart of the decision is a distinction between expenditures and contributions. The Court said that, under the First Amendment, Congress could not restrict campaign expenditures. Spending money was like speech itself because “every means of communicating ideas in today’s mass society requires the expenditure of money.” That included printing handbills, renting halls, and buying
ads on television. It is a result of
Buckley
that wealthy candidates can spend as much as they want of their own money on their campaigns; it would be unconstitutional to limit their expenditures.

On the other hand, according to
Buckley
, limits on contributions were constitutionally permissible. The Court said that a campaign contribution served only as “a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support.” In the Court’s view, limiting contributions did not really inhibit much political expression by the person giving the money. This was why the Court concluded that it was permissible for the law to limit how much an individual could contribute to any particular campaign.

In the 1974 law,
Congress had tried to set up a tightly controlled system for financing campaigns: the government would monitor and regulate both the inflows and outflows of money. It is not clear that it would have worked as intended, but at least the proposal made a sort of holistic sense. Congress could essentially select a number for the overall price of a congressional (or presidential) campaign and then force candidates to live within that parameter.
Buckley
ended that system before it even started and imposed a different one of the justices’ own creation. In the justices’ system, contributions could be limited, but expenditures could not. The legislators who designed the law certainly did not think this distinction made sense. Both contributions and expenditures involve political expression, and campaigns clearly need both of them to function. At the same time, a system that sought to limit the power of money in campaigns would have to control both contributions and expenditures in order to make any real difference. (That is what Congress tried to do.) Instead, the Supreme Court’s improvised hybrid drew a distinction where none may have existed, and for two generations that distinction has been the central feature of the constitutional rules of campaign finance. The bottom line was that money is speech.

Buckley v. Valeo
created an entirely new area of law. With the vague and imperfect guidance from the Court, the federal government and the states had to construct their systems for regulating campaigns. Concurrently, candidates, their supporters, and their opponents began to act according to their understanding of the law.
Buckley
dealt only
with candidates and elections, but it left unsettled the rules for “issue advocacy”—television commercials that were supposedly designed to change public opinion rather than the outcome of a single election. “Issue advocacy” was much less regulated than campaign spending, but the line between the two was less than clear, and easily exploited.

The law treated the financing of campaigns and “issue advocacy” very differently. Under
Buckley
, candidates had to rely only on tightly regulated campaign contributions to pay for ads. But advocacy groups could receive and spend unlimited funds, and issue advocacy advertisements could look a lot like political campaign commercials. Advocacy groups could run commercials saying “Call Joe Congressman and tell him he’s wrong,” and that would not count as a contribution to his opponent. Similarly, groups could avoid federal regulation by preparing “voter guides” that pointed out the contrasts between candidates in clearly partisan ways.

Like any other major change in the law, the post
-Buckley
world of campaign regulation prompted a group of lawyers to develop specialties in the new field. The most revealing career was that of James Bopp Jr. Over three decades, Bopp became one of the most important anti-abortion lawyers in America and one of the most vocal opponents of campaign finance laws. Bopp’s twin goals reflected a true symbiosis.

Bopp was raised in Terre Haute, Indiana, and in 1970 graduated from Indiana University, where he headed the chapter of Young Americans for Freedom, the student group that propelled many Republican careers. He returned to the state to practice law after graduating from the University of Florida law school in 1973, the year of
Roe v. Wade
. Bopp decided to join the fledgling anti-abortion movement and was hired as general counsel to the Indiana chapter of the National Right to Life Committee. Two years later, Bopp became general counsel to the full National Right to Life Committee—and a key Republican partisan in the elections of 1980.

Bopp persuaded his colleagues to start a political action committee to give financial support to anti-abortion candidates, and the Right to Life group put out a series of “voter guides” before Election Day. These guides were credited with helping to create the landslide that put Ronald Reagan in the White House and twelve new Republicans in the Senate. The right-to-life voter guides were barely concealed works of advocacy, and the FEC later tried to ban them. Bopp won a First Amendment challenge to the prohibition, and began working actively
to challenge campaign finance restrictions as well as abortion rights. Bopp’s dual career was launched.

Bopp ultimately filed or defended 140 lawsuits around the country, challenging various kinds of campaign finance regulations as violations of the First Amendment. He argued two cases before the Supreme Court, winning one of them, before his friends at Wisconsin Right to Life asked him for help in another case in 2004. It was, in certain ways, similar to the work he had been doing for decades, with one very important exception.

In 1989, during his first term in the Senate, John McCain was one of the “Keating Five” who participated in unsavory dealings with Charles Keating Jr., a corrupt Arizona financier. McCain was never charged with any wrongdoing, but the humiliation of the experience led him to become a leader in the fight for campaign finance reform. More than a decade of work produced the Bipartisan Campaign Reform Act of 2002 (BCRA), which was sometimes pronounced “bic-ruh” but more often called the McCain-Feingold law. The law passed mostly because of Democratic support. President Bush signed it with great reluctance, early in the morning to avoid a public ceremony, and immediately announced his reservations about its constitutionality. So for the most part, the customary ideological split on campaign finance reform prevailed with McCain-Feingold. Indeed, by the time McCain ran for the Republican nomination for president in 2008, he had all but repudiated the law that bore his name.

One of the primary targets of the McCain-Feingold law was the increasingly meaningless distinction between candidate advertisements and “issue” advertisements. For many years, corporations and labor unions had spent millions on ads that denounced individual candidates but technically avoided the specific language that turned a commercial into a “campaign” ad. McCain-Feingold sought to address this problem by prohibiting corporate and labor union funding of any broadcast ads mentioning a candidate within thirty days of a primary or caucus or within sixty days of a general election.

The new law prompted Wisconsin Right to Life to come to Bopp with a problem. The state had two Democratic senators, Russell Feingold
and Herb Kohl, who both supported abortion rights. In the run-up to the election of 2004, when Feingold was on the ballot, Right to Life wanted to run radio ads like the following:

The advertisement was designed to criticize Feingold, but it did not specifically discourage a vote for him. In that way, it looked like an “issue” ad, but because it ran before an election, it was prohibited by the McCain-Feingold law. The political priorities of the right-to-life movement were also revealing. The Wisconsin group, which was dedicated to fighting abortion rights, was putting its money behind pushing President Bush’s judicial nominations, which suggests how important federal judges were to the conservative movement. (When President Obama’s judicial nominations were obstructed by Republican senators, there was no comparable energy expended on their behalf by Democrats.)

Bopp believed the McCain-Feingold ban on issue advertisements violated the First Amendment, but he had a problem. In 2003, in one of the last major opinions of the Rehnquist Court, the justices had upheld the great majority of McCain-Feingold against a constitutional challenge led by Mitch McConnell, a leading Republican in the Senate and
a dedicated foe of all campaign finance reform. (The case was known as
McConnell v. Federal Election Commission
.) How could Bopp challenge a law that had already been upheld?

But the lawyer was fearless. Bopp knew that the 2003 Supreme Court case was a challenge to McCain-Feingold “on its face”—that is, a claim that the law was going to be unconstitutional in all circumstances. A new case would challenge the law “as applied” against Wisconsin Right to Life. He would claim that this specific application of the law violated the group’s First Amendment rights. Bopp didn’t wait around for the FEC (a notoriously slow-moving agency) to challenge his clients. Rather, he decided to bring a preemptive lawsuit challenging the ban on issue advertisements before elections.

Bopp knew that he had an important advantage over the failed 2003 challenge to the McCain-Feingold law. In that case, O’Connor had voted to uphold most of the law as part of a 5–4 majority. But she was now gone, having been replaced by Alito, so Bopp could count on the more friendly faces of the Roberts Court.

The Wisconsin Right to Life case was heard on April 25, 2007, the last day of arguments during Roberts’s tumultuous second year as chief justice. It was the year of great conservative ascendancy—of Lilly Ledbetter’s loss, of the approval of the late-term abortion ban, and of
Parents Involved
, the cases involving the integration of the Louisville and Seattle schools. By the time
Federal Election Commission v. Wisconsin Right to Life
was argued, all these other cases had already been decided (if not yet announced), so the liberals knew that they would lose. No one was more frustrated than Stephen Breyer.

A pattern had emerged over Breyer’s years at the Court. He would arrive each fall, after a summer of travel and relaxation, full of the optimism that had been a trademark for the first half century of his adult life. But each year, as the defeats piled up and the Court turned away from him, he would grow more and more discouraged. On this final day of arguments in the fateful 2006–07 term, Breyer was spitting fire—at Jim Bopp.

What frustrated Breyer in the Wisconsin case was that he thought he had already won this particular battle in 2003, when the Court
upheld McCain-Feingold in the
McConnell
case. Breyer had recently published
Active Liberty
, a book intended for a popular audience, which celebrated at length the importance of campaign finance reform. Now that achievement, like so many of Breyer’s victories on the Court, looked as if it could slip away.

Breyer taunted Bopp—which amounted to baiting his conservative colleagues. “If we agree with you in this case, good-bye McCain-Feingold,” Breyer said. “Maybe we should do it up front. That’s what you advocate. Very well. Would you address that? Why should this Court only a year or two after it upholds McCain-Feingold, accept a position that either in fact or in theory overturns that case?”