Alito's Way

Changes on the Court Usher in a Reversal of Course
On Campaign Finance Reform
By Adam Liptak

On July 1, 2005, the day Justice Sandra Day O’Connor announced that she was stepping down, Professor Nathaniel Persily told a newspaper reporter that hers was “arguably the most significant retirement in the history of the Supreme Court.” Her replacement, Persily said, would become the swing vote on a few critical issues, notably the regulation of the role money may play in politics. Justice O’Connor had provided the fifth vote to uphold several campaign finance laws, and she was the co-author of the 2003 decision that upheld the major provisions of the Bipartisan Campaign Reform Act, often called the McCain-Feingold law.

Three years later, Richard Briffault, the Law School’s Joseph P. Chamberlain Professor of Legislation, confirmed what Persily had predicted. Assessing a Supreme Court decision striking down a law meant to level the playing field in elections involving rich candidates who pay for their own campaigns, Briffault told The New York Times that the Court had become “increasingly hostile to campaign finance reform.” The reason was straightforward, he said: Justice O’Connor had been replaced by Justice Samuel A. Alito Jr., who is notably more skeptical about campaign finance regulation.

The two professors have made Columbia Law School an important center of scholarship on election law in general and campaign finance law in particular. They approach the issue from different perspectives. (“Nate is more empirical,” Briffault says. “I’m more doctrinal.”) But they share a fascination and engagement with a subject that is simultaneously technical, complex, and tremendously important.
“How we pay for our democracy is crucially significant for how it’s going to operate,” Briffault says. “It’s something we all have a stake in.”
Before Justice O’Connor’s retirement, Persily says, “there were five votes on the Court to generally defer to Congress and state legislatures when it came to regulating campaign contributions and expenditures by corporations and unions.”
But the Court’s approach changed rapidly with Justice Alito’s arrival.
“There has been a really sharp shift since she left,” Briffault says.
In all three campaign finance cases considered by the Court since Justice O’Connor’s retirement, Justice Alito voted with the majority to strike down laws regulating money in politics. Indeed, in the first of the three cases, Justice Alito indicated that he might be willing to reconsider Buckley v. Valeo, the cornerstone of modern campaign finance law. That 1976 decision upheld limits on contributions but struck down limits on expenditures by or on behalf of candidates.
In the first decision, Randall v. Sorrell, in 2006, the Court reaffirmed Buckley’s ban on campaign spending limits. But, for the first time, it struck down a contribution limit.   
“The Court said the contribution limits were so low as to prevent candidates from running an effective campaign,” Persily says of Vermont’s caps, by far the lowest in the nation.
The next year, in Federal Election Commission v. Wisconsin Right to Life, Inc., the Court opened a significant exception to its 2003 decision on the McCain-Feingold law. The earlier case had upheld a provision of the law against a facial First Amendment challenge. (The provision prohibited corporations and unions from paying for broadcast advertisements mentioning the names of federal candidates shortly before elections, and many observers had considered the matter settled.)
But the 2007 decision, an as-applied challenge by an anti-abortion group that had sought to run ads urging viewers to contact two senators about President Bush’s judicial nominees, ruled that the law violated the First Amendment in many settings. The decision, Persily says, “drives a truck through the expenditure limitations.”
And in June, in Davis v. Federal Election Commission, the Court struck down a part of the McCain-Feingold law that loosened contribution limits for candidates facing rich opponents paying for their own campaigns.   
“The case on its own terms is not terribly significant,” Persily says. “It’s important, if at all, in what it tells us about where Roberts and Alito are.” Chief Justice John G. Roberts Jr., who was in the majority in all three cases, replaced Chief Justice William H. Rehnquist, who was also wary of campaign finance regulation.
The trend, both professors said, is clear. “The Court is no longer moving in the direction of approving campaign finance regulation,” Briffault says. “The ship has stopped in the ocean.”
Persily notes that the ship may in fact be turning back.
“You will find a slow erosion of Buckley v. Valeo,” he says. “The Court seems to like these cases, and there are many of them in the pipeline.”
Adam Liptak is the national legal correspondent for
The New York Times.

To view this story as it appeared in Columbia Law School Magazine (Fall 2008), please click here.