McConnell v. FEC and the Transformation of Campaign Finance Law

Abstract

147 McConnell v Federal Election Commission1 is a stunning triumph for campaign finance reform. The Supreme Court rejected a host of constitutional challenges and upheld all the major provisions of the Bipartisan Campaign Reform Act (“BCRA”) of 2002,2 including the restrictions dealing with political party soft money and issue advocacy advertising. This was, no doubt, the single greatest legal victory for campaign finance regulation since the modern era of campaign finance law was ushered in three decades ago by the enactment of the Federal Election Campaign Act (FECA) of 1971, the FECA Amendments of 1974 and the decision in Buckley v Valeo.3 To be sure, in many respects McConnell can be viewed as a relatively conservative decision, rooted in the campaign finance doctrines that the Court developed in Buckley and its progeny. The Court’s validation of the restrictions on soft money grows directly out of Buckley’s central conclusion, subsequently elaborated in Nixon v Shrink Missouri Government PAC,4 that, although restrictions on campaign finances implicate rights of speech and association, contribution limits are less of a burden on the First Amendment than expenditure restrictions, and such limits are justified by the important government interest in preventing corruption and the appearance of corruption. McConnell’s affirmation of BCRA’s prohibition of the use of corporate and union treasury funds to pay for electioneering communications can be traced to earlier cases, such as Federal Election Commission v National Right to Work Committee,5 Austin v Michigan Chamber of Commerce6 and Federal Election Commission v Beaumont,7 in which the Court found that corporations present special campaign finance problems, justifying particularly stringent regulation. McConnell’s rejection of the challenges to BCRA’s requirement of the disclosure of disbursements for and contribu-