Lillian BeVier has published in the Cato Supreme Court Review an essay about campaign finance jurisprudence after Wisconsin Right to Life, and she finds in the case proof that the Court's doctrinal divisions are unbridgeable.  Her sympathies lie with the WRTL majority; she applauds the case as a bracing revival of First Amendment values held dear by the majority and heavily discounted by the minority.  For Justice Souter and those joining him in dissent, the problems posed by money-in-politics must be realistically addressed if “democratic integrity” is to be preserved. 

     BeVier’s essay does bring out a point hard to miss in the literature and debates on these issues:  the opposing views of the Court do not lend themselves much to “compromise.”  Buckley managed this compromise better than any case since:  perhaps this is its staying power, that it has been hard to find a replacement that achieves a superior “balance” between regulatory authority and First Amendment rights.  BeVier appreciates Buckley as far as it goes, and she credits WRTL with restoring campaign finance to its Buckley roots and repairing the damage done to them by McConnell. 

     BeVier is mostly pleased that the WRTL Court takes seriously Buckley’s warning about the elusive distinction, in “practical application,” between the discussion of candidates and the discussion of issues.  Unlike McConnell, the difficulty of this distinction points for the Buckley and WRTL Courts toward more rather than less First Amendment protection.

     So Buckley works well enough for BeVier, and WRTL saves it from the virtual oblivion to which McConnell condemned it.  Or, if Buckley does not succeed all that well, we are at least used to it, and we know that its successor—and McConnell was an aspiring successor—may be far worse.  

     In her judgment on the jurisprudential alternatives, BeVier would have the reader keep in mind the cause of the Court’s difficulties:  the law itself.

With FECA and BCRA, Congress has created a pervasive regulatory regime that has concentrated power in Washington-based interest groups, stifled grass roots political activity, embedded incumbent office-holders, and undermined the already fragile incentives that individuals have to participate in efforts to hold their government  accountable. Thus, the majority’s perception [in WRTL] of how the First Amendment requires the Court to go about determining the constitutionality of campaign finance regulations marries its commitment to the political freedom that is at stake to its deep skepticism about whether government regulation of political activity can ever be benignly motivated or benevolent in its effects.  

BeVier at 109-110.

Bob Bauer