News > Politics > Supreme Court Skeptically Reviews McCain-Feingold

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FRIDAY APRIL 27 2007 9:00 AM

Supreme Court Skeptically Reviews McCain-Feingold

Submitted by Subrosa

Edited by Rahodeb

Tags: McCain-Feingold, Supreme Court, Alito, Campaign Finance Reform

Oral arguments concerning a key feature of the election reform law known as McCain-Feingold were held this week at the Supreme Court.

McCain-Feingold, or the Bipartisan Campaign Reform Act of 2001, enjoys enthusiastic support from a broad percentage of the public and enthusiastic disdain from an even broader array of political advocacy organizations. The Act, among other things, limits the amount of money an individual can contribute to any one persons campaign and imposes stringent reporting requirements on candidates and political advocacy groups.

While many contend the act violates the First Amendment because it regulates legitimate political expression, it was found facially Constitutional back in 2003 by the Supreme Court in McConnell v. FEC, 540 U.S. 93 (2003). In McConnell, Justice OConnor with Justice Stevens wrote:

Many years ago we observed that "[t]o say that Congress is without power to pass appropriate legislation to safeguard ... an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection." Burroughs v. United States, 290 U. S., at 545. We abide by that conviction in considering Congress' most recent effort to confine the ill effects of aggregated wealth on our political system. We are under no illusion that BCRA will be the last congressional statement on the matter. Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day. In the main we uphold BCRA's two principal, complementary features: the control of soft money and the regulation of electioneering communications.

However, the Courts composition has changed since 2003. OConnor, a moderate, has been replaced by arch-conservative Samuel Alito. So when Alito and co. got a chance to review a specific provision of McCain-Feingold, they jumped at it.

At issue is a major provision of the five-year-old law that bars corporations and labor unions from paying for advertisements that mention the name of a candidate for federal office and that are broadcast 60 days before an election or 30 days before a primary. By a 5-to-4 vote in December 2003, the court held that the provision, on its face, passed First Amendment muster.

But a new majority may view more expansively the Constitutions protection of political messages as free speech, and invite a flood of advertising paid for by corporations and unions as the 2008 elections move into high gear.

The argument on Wednesday was over whether, despite the 2003 blanket endorsement, the law would be constitutional if applied to three specific ads that an anti-abortion group sought to broadcast before the 2004 Senate election in Wisconsin.

Uh oh. And judging by the way the oral arguments went on Wednesday, it seems supporters of the law might have reason to worry. The McConnell decision was a 5-4 vote. Three dissenters (Scalia, Thomas and Kennedy) are still on the Court and the Fourth (Rehnquist) has been effectively replaced by Chief Justice Roberts. That leaves all eyes on Alito, who remained quiet as to his intentions during oral arguments until he wheeled on an attorney defending the law.

What would happen, Justice Alito asked Mr. Waxman, if a group had been running an ad about an issue, and lets say a particular candidates position on the issue is very well known to people who pay attention to public affairs. Suppose the blackout period established by the law was approaching 30 days before a primary or 60 days before a general election and an important vote is coming up in Congress on that very issue. Could the group be prohibited from continuing to broadcast the ad?

That would depend on the context, Mr. Waxman replied.

Justice Alito did not appear satisfied. What do you make of the fact that there are so many groups that say this is really impractical? he asked. His reference was to the impressive array of ideological strange-bedfellows that filed briefs in support of Wisconsin Right to Lifes challenge. These range from the American Civil Liberties Union to the National Rifle Association to the United States Chamber of Commerce to the A.F.L.-C.I.O.

I love it! Mr. Waxman replied energetically, as if he had been waiting for just such a question. He said that although these many groups opposed the law, they were living with it and contenting themselves with running advertisements that advocated their positions on issues without mentioning candidates. The only two as-applied challenges, he noted, have both been brought by Wisconsin Right to Lifes lawyer, James Bopp Jr., who also has another case pending before the court.

Chief Justice Roberts was unimpressed by this line of argument. I think its an important part of their exercise of First Amendment rights to petition their senators and congressmen and to urge others to, as in these ads, contact your senators, contact your congressmen, he said, adding, Just because the A.C.L.U. doesnt do that doesnt seem particularly pertinent to me.

If the Court finds that McCain-Feingold is unconstitutional as applied to the regulation of the Wisconsin anti-abortion groups ads, the law will lose much of its effect. Essentially, it could allow political advocacy groups to broadcast issue ads specifically targeting candidates up for election so long as they do not come out and say vote for the other guy. It would be a hole in the law that would be even bigger than the one the Swift Boat fuckers exploited to smear John Kerry.

The decision will be handed down in a few months. Just in time for the 2008 primaries.

Subrosa will bet you a fiver that if this loophole in McCain-Feingold is blown open that John McCain and his supporters will take advantage of it more than will any other candidate.

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Comments

RileyStClair

Los Angeles, CA

September 2006

APR 27, 2007 09:31 AM

eroding mccain-feingold makes me a little sick.

i've been saying for years that candidates for the presidency (and congress) shouldn't be allowed to take any money to run their campaigns. they should run them just like fourth grade student council--each candidate is given a pack of markers and some poster board.

IrFu

Loxley, AL

December 2006

APR 27, 2007 10:07 AM

yourfashionwar said:
...they should run them just like fourth grade student council--each candidate is given a pack of markers and some poster board.

lol Unfortunately, that is all I used in high school, and it didn't work

Subrosa said:
Subrosa will bet you a fiver that if this loophole in McCain-Feingold is blown open that John McCain and his supporters will take advantage of it more than will any other candidate.

Based on the tone of the article, are you implying only conservatives will stoop so low?

geo35

Minneapolis, MN

January 2003

APR 27, 2007 10:11 AM

yourfashionwar said:
eroding mccain-feingold makes me a little sick.

i've been saying for years that candidates for the presidency (and congress) shouldn't be allowed to take any money to run their campaigns. they should run them just like fourth grade student council--each candidate is given a pack of markers and some poster board.

Though I agree in principal, no matter what sort of fanciful idea I invent in my head, I soon enough realize it won't work. "Money, like water, will always find an outlet." And people addicted to power - people of all political stripes - will always find a way around the rules so as to get their fix.

aegies

Oakland, CA

June 2004

APR 27, 2007 10:14 AM

Great. What may have been the most vicious Democratic primary in recent history, will be even more vicious.

SignalNoise

USA

February 2004

APR 27, 2007 10:51 AM

I'm no legal scholar, but - at first blush - I share Alito's discomfort over Waxman relying on "context" to determine if an ad is addressing an issue where legislators stances are "well known." Unregulated money all over the place in an election isn't good for democracy at all - it obviously gives a great deal more voice to those with the deepest pockets. But I dunno what the proper standard for silencing some people is at all.