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Roberts Court rulings on campaign finance reveal shifting makeup, forceful role

Because of the Supreme Court, "I have to say we've made much more progress than I thought we would in five years," Smith said.

The court's foray into that area was something of a surprise, too, but was powered by challenges to the law inspired by Smith's group, the Institute for Justice, the James Madison Center and others.

The Supreme Court in 2003 found that the campaign finance act - formally, the Bipartisan Campaign Reform Act of 2002 - met constitutional standards. The vote was 5 to 4. But that balance shifted when Samuel A. Alito Jr. replaced Sandra Day O'Connor, who had been in the majority.

In quick order, the court said it would consider whether specific applications of the law might pose constitutional problems in certain circumstances. It found one.

In Wisconsin Right to Life v. FEC, it gutted the law's restrictions on groups running "issue" ads mentioning a specific candidate just before an election. The previous court majority had said such ads were simply a foil for getting around restrictions on express advocacy of a candidate.

With Roberts writing the opinion, the majority - the chief justice, Alito, Scalia, Kennedy and Justice Clarence Thomas - said such restrictions were warranted only if there was no other understanding of the ad except as a plea to vote for or against the candidate.

The same five justices a year later struck the law's "millionaire's amendment," which increased contribution limits for candidates who faced wealthy, self-funded opponents.

Then in Citizens United, which concerned a conservative group's efforts to advertise and air a scathing documentary about Hillary Rodham Clinton, the court reached beyond the narrow question presented. It asked attorneys for the group and the government to weigh in on whether it should overturn its precedents forbidding corporations and unions from using their general treasuries to support or oppose candidates.

Columbia University law professor Nathaniel Persily said the moves offer a greater lesson on how Roberts influences the court.

"Campaign finance is just one area where Chief Justice Roberts has strung together a series of minimalist decisions that eventually have a revolutionary effect," Persily said.

"The significance of each incremental step is only realized after the fact, when the last shoe drops."

Roberts and Alito joined the three justices who already thought that McCain-Feingold and the corporate ban were unconstitutional, and delivered a sweeping ruling that they said was more true to the court's other decisions on how the First Amendment protects political speech, no matter the speaker.


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