Peering into the Campaign Finance Law Crystal Ball: Guiding Principles for the Future of the BCRA and "Issue Advocacy" in Citizens United and Beyond

As though he were predicting, and perhaps inviting, a challenge in the near future, Justice Alito wrote just two years ago in FEC v. Wisconsin Right to Life, Inc. (WRTL II), that “[i]f it turns out that the implementation of the as-applied standard set out in the principal opinion impermissibly chills political speech, we will presumably be asked in a future case to reconsider the holding in McConnell v. [FEC] that § 203 [of the Bipartisan Campaign Reform Act of 2002 (BCRA)] is facially constitutional.” Thanks to maneuvering by the Supreme Court of the United States, that future case is now at hand and a majority of the Justices appear poised to dramatically rewrite campaign finance law as the Court reconsiders Citizens United v. FEC. Accordingly, this Comment develops—using insight from Justices who have emphasized First Amendment concerns in campaign finance jurisprudence—guiding principles for reaching a healthy democratic balance that fully protects pure issue advocacy while regulating sham issue advocacy under the BCRA.