Show us your money: halting the use of trade organizations as covert conduits for corporate campaign contributions

Journal of Corporation Law, The, Fall, 2007 by Shayla Kasel

However, just a few years later, the Supreme Court returned to strict scrutiny in reviewing campaign finance laws. In Randall v. Sorrell, the first campaign finance decision of the Roberts Court, the Court discussed strict scrutiny at length, indicating the Court would no longer defer to legislatures. (98) Prior to Randall, the Court's conservative wing--Justice Thomas, and to a lesser extent Justice Scalia--was extremely critical of the Court's expanded deference in the area of campaign finance in Shrink Missouri and McConnell. (99) In Randall, it found allies in the Court's two newest members, Chief Justice Roberts and Justice Alito. (100) In 2007, WRTL continued this trend toward heightened scrutiny when the Roberts Court reversed McConnell and overturned BCRA's limitations on issue advocacy. (101) The WRTL Court held BCRA's regulations impermissibly burdened the First Amendment right to free speech and could not survive strict scrutiny. (102) Scholars suggest that the tide of campaign finance regulation has turned back to strict scrutiny, and suggest the possibility that the Court either has reached its limit of what it considers permissible regulation or that very few campaign finance laws will survive judicial inquiry by the Roberts Court. (103)

2. Issue Ads Are Here to Stay

A key provision of BCRA prohibited express advocacy within 60 days of a general election or 30 days of a primary election, unless paid for with hard money. (104) The goal was to curb the use of corporate and union treasury funds by effectively stopping issue advertisements two months before the election. (105) However, the WRTL Court overturned most of BCRA's issue advocacy regulations and removed BCRA's limitations on corporations and unions. (106) After WRTL, the role of issue advertisements and outside groups is unclear. The removal of the issue advocacy limits indicates that outside groups will have increased abilities to advocate and influence elections due to this deregulation of the political marketplace. (107) Trade organizations will likewise continue to have an unregulated impact on federal elections, funding issue ads without restrictions. The FEC is promulgating new rules to adapt to the Court's decision in WRTL, (108) but the FEC's similar efforts in the wake of Buckley led to more confusion and piecemealed enforcement.

3. The Elimination of Soft Money

The only key provision of BCRA still intact is the attempt to cut soft money out of federal elections by curtailing its use by state parties and by prohibiting its use by national parties. (109) BCRA banned the use of soft money for purchasing "electioneering communication," such as broadcast advertising and direct mail. (110) While soft money did not conclusively result in quid pro quo corruption, political parties did solicit soft money by promising contributors access to candidates. (111) The McConnell court rejected a challenge to BCRA's soft money prohibition, and upheld the provisions eliminating soft money.112 However, the major loopholes of BCRA were evident even before its test run in the 2004 election cycle. (113) Instead of excising soft money, the loopholes simply redirected soft money to new outlets, such as 527 and 501(c)(6) organizations, which are less regulated and better able to hide the contributions and expenditures. (114)