ELECTION LAW'S LOCHNERIAN TURN

Consider, first, Citizens United, which scrapped key provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA)12 and precedent that supported them.13 The provisions at issue prevented corporations and unions from using general treasury funds for "electioneering communication," a practice the BCRA broadly defined to include broadcast and related types of communication that mentioned candidates for federal office during specified periods.14 Congress meant for these provisions to rein in so-called issue advocacy, namely, advertisements that were intended to endorse or condemn candidates, but did so without using words like "elect" or "vote" and hence fell outside the preexisting regulatory framework.15 Congress's effort was for naught. The Citizens United Court understood the BCRA's limits on corporate-funded issue advocacy to be a ban on speech, rather than a regulation of it, and a ban made worse by the regime's selective reach.16 The Court, moreover, suggested that the problem Congress intended the BCRA provisions to target - namely, preferential access and the opportunity to influence - might not even be a problem at all.17 In his opinion for the Court, Justice Kennedy wrote that the goals of combatting corruption and the appearance of it, which had long served as justifications for regulation in the campaign finance arena, were "limited to quid pro quo corruption.