Incoherence in campaign finance jurisprudence did not begin with the Court’s decision in Wisconsin Right to Life.  Rick Hasen, in a new paper, agrees, but he argues that the recent decision did not make matters better.  We have now a new incoherence, just as it bad as what came before.  Whereas the Court prior to WRTL toyed with notions of legislative deference, the Roberts Court is done with deference and is now, no more lucidly "deregulatory" in aim.  Hasen would have the Court make a choice:  advance toward a jurisprudence of equality, following the lead of Justice Breyer’s Active Liberty, or do Scalia’s bidding and openly admit to the deregulatory project.  

     Hasen puts forward his specific reasons for charging the WRTL outcome with incoherence.  The principal opinion "is written in a lawyerly and sophisticated way" to give the appearance of consistency with McConnell.  Beyond Incoherence at 19.  And yet Hasen finds no such consistency.  WRTL’s tone is at odds with McConnell’s: it is packed with references to "crimes" and "First Amendment" and even the word "censor," and unlike McConnell, it eschews any mention of "loopholes."  Id. at 20. 

     This may be a different "approach to the constitutionality" of the law (id. at 19), but these tonal differences don’t seem to count so much against as in favor of the new opinion.  McConnell, allegedly decided pursuant to Buckley, hardly gets points for coherence because it leans on words like "loophole" and flees from many mentions of the First Amendment.  But WRTL may lay claim for some credit, and for greater constitutional coherence, for having brought the First Amendment more squarely into the analysis.

     Hasen adds that the problem of coherence arises also out of the WRTL’s "effective" overruling of McConnell on the fundamental issue of the constitutionality of the 30- and 60-day broadcast bans on unions and corporations.  Hasen is hedging his bets here.  "[I]t is a bit hyberbolic" to claim that WRTL completely overruled McConnell."  Id. at 22.  But, still, "it is fair to say that the principal opinion in WRTL effectively overruled McConnell."  Id. at 22 (emphasis in original).  What Hasen means is that "most such advertising" by unions and companies, under the test announced by WRTL, will escape the ban.  Id.

     Hasen cannot know this, though he fears it.  In what way is this a charge of "incoherence"?  It is possible to say, by contrast, that the original enactment was bound to run up against this problem once it was established, as the government had originally (and necessarily) conceded, that an "as applied" challenge was available for true "issue" ads.  If there were to be such a line—between campaign-related and "issues" speech—it would be foreseeably hard to draw.  It could be drawn so that most ads fell within the prohibition, or most would fall safely outside of it.  One might prefer one outcome or the other, but the test producing either outcome does not necessarily suffer from incoherence.  It is simply stuck with doing a difficult job.

      Hasen’s impatience with the challenge of drawing this line—which is really a preference for drawing it his way—leads him to complain that the Court is ignoring prohibitions on corporate election-related spending under Austin and Beaumont.  He insists that "the WRTL case [is] about a candidate election."  Id. at 25.  But this was the very issue before the Court:  whether it was or was not election-related speech.  Hasen, by assuming the point in contention, is bound to be disappointed in the outcome.  For this same reason, Hasen is frustrated by the Court’s refusal to consider the factor of electoral competitiveness—a factor the Court would have to be excused from considering if the speech in question is found to be issues—and not campaign-related—speech.

      Finally, Hasen objects that the Court was inconsistent in its treatment of electoral "effect."  On the one hand, the Court ruled out any consideration of "effect" in judging whether an advertisement was election related.  On the other, the standard the Court adopted for distinguishing election from issues speech calls for a determination that seems, as Hasen reads it, to demand attention to effect.  The standard requires a finding that an ad cannot be reasonably interpreted other than as an appeal to vote for or against a particular candidate.  This cannot be done, Hasen maintains, "without considering how hearers would react to the advertisement."  Id. at 26-27.

      This last criticism is interesting, making the most of the case for incoherence.  The answer, however, is that the Court is defensibly concerned to limit the very effect of an "effects test":  it is unwilling to countenance an unbounded test for effect that invites a free-ranging inquiry into "context."  The Court is forcing the inquiry into the more confined space of the text, and it explains what the speaker—and we—should expect from any such examination.  There is a large difference between a test that probes effects through "context" and one that considers just text, and it is in this sense, and not at all inconsistently, that the Court rejects the broader, more invasive contextual test favored by Hasen.  This is a principled jurisprudential choice, not a fall into incoherence.

      There is more, much more, in Hasen’s critique of WRTL.  On the theoretical issue—the issue of jurisprudential incoherence in WRTL—it is far from clear that he clinches his case.  He does leave no doubt about his unhappiness with the outcome.  But in rooting, as he does, for Justice Breyer’s jurisprudential vision of political equality, captured in Justice Breyer’s explication of Active Liberty, it is not certain that coherence is really his goal.  If it is, he ought not to be looking in the direction of Active Liberty.  This topic has been discussed previously here and here.  See also, Robert F. Bauer, "Democracy as Problem Solving: Campaign Finance and Justice Breyer's Theory of 'Active Liberty'," 60 U. Miami L. Rev. 237 (2006).

Bob Bauer