540 U.S. 93 (2003), argued 8 Sept. 2003, decided 10 Dec. 2003 by vote of 5 to 4; Stevens and O’Connor for the Court, joined by Souter, Ginsberg, and Breyer (Titles I and II). Rehnquist for the Court (Titles III and IV), joined by in whole or part by O’Connor, Scalia, Kennedy, Souter, Stevens, Ginsberg, Breyer, and Thomas. Breyer for the Court (Title V), joined by Stevens, O’Connor, Souter, and Ginsberg. Scalia, Kennedy, Rehnquist, Thomas, Stevens, Ginsberg, and Breyer in dissent in various parts.
The 298-page opinion does not lend itself to easy summarization, but it did uphold two key provisions of the Bicameral Campaign Reform Act of 2002 (BCRA): the control of “soft money” and the regulation of “issue ads.”
The historical evolution of national campaign finance law is well-known. Corporate contributions had been regulated since the 1900s; union contributions had been controlled since World War II. In Buckley v. Valeo, the Court reviewed the Federal Election Campaign Act Amendments of 1974, in particular their attempt to staunch the flow of money through political action committees (PACs). The justices upheld contribution limits, but struck down, on First Amendment grounds, limits on candidate and individual expenditures. The purpose of BCRA Title I was to take national parties out of the soft-money business. To rebut the appellant's First Amendment, federalism, and equal protection objections, the Court reasoned its way to two important conclusions:
Title II of BCRA coined a new term, “electioneering communications,” to respond to a statutory, not constitutional, interpretation in Buckley that had differentiated “express advocacy” (vote for Doe) from “issue ads” (Doe is soft on crime). The substance of a political communication, not its “magic words,” was a proper legislative concern; the Court upheld dollar and timing limits on how electioneering communications could be made.
Titles III and IV