O'Connor's Replacement May Determine Fate of Campaign Finance Reform

While much of the coming debate over President Bush's nominee to replace Sandra Day O'Connor will focus on divisive social issues such as abortion, gay marriage, and affirmative action, the new justice may well play a pivotal role in determining whether the Supreme Court will allow meaningful limits on the role of big money in political campaigns.

As her career progressed, O'Connor was increasingly supportive of campaign finance reform and she helped shift the Court from an anti-reform posture to one that recognized the obvious threat that large donors pose to representative democracy.

In 1976, with most justices on the bench still from the liberal Warren Court, the Supreme Court struck down many components of a major campaign finance bill that Congress had passed in the wake of the Watergate scandal. In the case Buckley v. Valeo, the Court rejected mandatory limits on campaign spending using the twisted logic that unlimited money in politics was a form of free speech. The Court did uphold the act's contribution limits, but those limits were set so high as to only impact about 1% of the donors at the time.

By 1990, the Supreme Court had become a bit friendlier to campaign finance reform, as it upheld a strict ban on the use of corporate money to run political ads that explicitly supported or opposed candidates in Michigan. O'Connor, however, joined with four other justices in opposing that ruling, so reform and representative democracy remained on shaky ground.

In the mid 1990s, many state level reformers moved to lower contributions to levels that ordinary citizens could afford. However, some conservative lower court judges moved the goalposts back by ruling that contribution limits were unconstitutional if they were set low enough to have any real impact.

The Supreme Court took a decidedly pro-reform stance by overturning these lower court decisions and ruling in no uncertain terms that even very low contribution limits were constitutional. In what was her first major pro-reform ruling, O'Connor joined five other justices in supporting the right of states to set these campaign finance rules.

By 2002, Congress passed the Bipartisan Campaign Reform Act, which included a ban on the use of corporate funds for TV ads that promote or attack candidates within 60 days of an election. The provision narrowed a gaping soft money loophole that had eroded the long-standing ban on corporate contributions to candidates, but many on both sides believed the Supreme Court would strike this reform. To their surprise, the Supreme Court upheld nearly all the major provisions of this law. O'Connor provided an important sixth vote that signaled to the country that the Court was willing to take a more hands off approach and let Congress and the states legislate as they saw fit in regard to rules for campaign funding.

Next October, the Supreme Court will decide whether to take what could become its most important campaign finance case in thirty years. The state of Vermont passed mandatory spending limits in 1997 as a direct challenge to the previous Supreme Court rulings. The Second Circuit Court of Appeals has ruled that spending limits can indeed be constitutional. The Supreme Court must decide whether to let this ruling stand, or take the case for review. Based upon O'Connor's evolution of thought on campaign finance cases, it's quite possible that she would have ruled in favor of spending limits for political campaigns.

If the Court accepts the Vermont case and if O'Connor's replacement on the bench supports campaign finance reform, there could be five votes on the Court to reverse the 1976 Buckley decision and uphold mandatory spending limits. However, given the distinct possibility that O'Connor's replacement winds up being more libertarian than she turned out to be on these issues, there is also the possibility that the Court could return to its anti-reform disposition of the 1970s. If William Rehnquist also retires and is replaced by an anti-reform justice, there could well be five votes on the Supreme Court to unleash a torrent of big money on elections in America.