Author: Gretchen Sund

The following post is from Richard H. Pildes, Sudler Family Professor of Constitutional Law, NYU School of Law, and Co-Director, NYU Center on Law and Security. The 5-4 decision in WRTL is a blockbuster. Effectively, though silently, it overrules a central element in the Court's most recent prior confrontation with the campaign-finance problem at issue, the 5-4 decision in McConnell, issued only four years ago when Justice O'Connor (and Chief Justice Rehnquist) were on the Court. There is no doubt today's decision reflects a constitutional sea change that is likely to have dramatic effects on upcoming elections. Some will celebrate that change, others will bemoan it, but that the change is dramatic cannot be doubted. WRTL deals with perhaps the hardest issue in the regulation of campaign financing: how regulation and constitutional law should distinguish between election ads, which seek to affect election outcomes, and issue ads, which seek to influence public opinion about issues of the day. A distinction of this sort is both essential to the constitutionality of campaign-finance regulation, on virtually all views, but also inherently artificial and difficult to put into practice. Public debate about issues and candidates is inherently intertwined, particularly as election day looms. Thus, any legal distinction between ads influencing election outcomes and ads influencing public debate is necessarily elusive. At the same time, if Congress cannot regulate something called "election ads" at all, then it becomes child's play for actors who are barred from contributing money directly to candidates to turn around and instead run election ads. WRTL addressed parts of the McCain-Feingold law, also addressed in McConnell, that banned and criminalized corporate and union "election ads." Corporations, it must be noted, include non-profit corporations, such as the AFL-CIO, Wisconsin Right to Life, the ACLU, the NRA, and others. For those concerned that direct corporate or union contributions to candidates risk "corruption," that same risk might be thought to be present when those actors instead spend large amounts to affect the outcome of elections.

This commentary is by Mark W. Osler, a Professor of Law at Baylor Law School currently working on an amicus brief in Kimbrough. While Doug Berman has offered an excellent overview of the Rita decision, I’d like to address just one somewhat strange but important conclusion drawn by Justice Breyer in his majority opinion-- that the sentencing guidelines already incorporate the sentencing factors listed in 18 U.S.C. § 3553(a). Specifically, he concludes that “the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.” What this ignores is the sheer number and diversity of directives that the Sentencing Commission must follow in drawing up the Guidelines. These directives extend far beyond what is required by 18 U.S.C. § 3553(a) itself, and includes instructions to consider ideas as vague as “fairness” and as narrow as the provision of restitution. Many of the directives (as Breyer recognizes) are in conflict with one another, which is perhaps inevitable given their sheer number.