McCain-Feingold Act: Will the USSC strike it down?

Via the Boston Globe:

WASHINGTON — Supreme Court justices yesterday expressed serious concerns about the legality of key portions of the McCain-Feingold Act, raising the possibility that the court may strike down or sharply limit part of the landmark campaign-finance law heading into the 2008 presidential election.

The McCain-Feingold Act, which was hailed as a major effort to control the influence of money in politics when President Bush signed it into law in 2002, forbids corporations and labor unions from buying advertisements mentioning a political candidate’s name within 60 days of a federal election.

In oral arguments yesterday in a case challenging the law, the court’s more conservative justices strongly suggested that the ban violates free-speech rights.

“This is the First Amendment,” Justice Antonin Scalia told lawyers defending the McCain-Feingold Act. “We don’t make people guess whether their speech is going to be allowed by Big Brother or not. If you are going to cut off the speech, there ought to be a clear line. . . . And you’re not giving us any.”

Scalia has long maintained that many types of restrictions on campaign financing violate the Constitution; in previous opinions, however, he has been in the minority when the cases were decided. In 2003, for example, the court upheld the first challenge to the McCain-Feingold Act by a 5-to-4 vote, with Justice Sandra Day O’Connor joining the court’s four liberals in the majority.

But the moderate O’Connor has retired, replaced by Justice Samuel A. Alito Jr., a more conservative judge. If the new court rolls back the McCain-Feingold Act, corporations and labor unions will be able to buy political ads more freely during the 2008 election. A decision is expected by June.

Yesterday’s case arose after an antiabortion group, Wisconsin Right to Life, tried to buy airtime for a television ad during the run-up to the 2004 election. The group is considered a corporation under federal election law.

The ad criticized senators who were blocking a vote on Bush’s federal judicial nominees, urging viewers to call Senator Russell Feingold — the Wisconsin Democrat who was a sponsor of the McCain-Feingold Act and who was up for reelection at the time — about the issue. The ad also touted a website that explicitly criticized Feingold.

The legal dispute centers on whether the ad was a legitimate attempt to lobby the government over a policy matter or whether it was a so-called sham issue ad — one that criticizes a candidate but avoids mentioning an upcoming election to circumvent legal limits on campaign financing.

I think the law has a serious chance of being overturned, especially considering the additions of Roberts and Alito to the USSC. When the USSC initially voted in support of the McCain-Feingold Act back in 2003, Roberts and Alito weren’t on the bench. Some of the justices involved in that ruling are upset that they are having to revisit the issue:

During yesterday’s hearing, the four justices who voted to support the McCain-Feingold Act in 2003 criticized the new challenge to it. Justice Ruth Bader Ginsburg suggested the ad was intended to hurt Feingold’s reelection bid, noting that Wisconsin Right to Life had “strongly opposed Feingold every time he ran for election.”

Justice Stephen G. Breyer added: “Why should this court, only a year or two after it upholds McCain-Feingold, accept a position that . . . overturns that case?”

Scalia, however, suggested that it might be a good idea to reverse course.

“Maybe we were wrong last time,” he said.

Can you believe the audacity of Breyer? Let’s say for the sake of discussion that the same justices who were on the court then were having to revisit the case now. So what? Is Breyer actually suggesting that the court can’t be wrong? Breyer knows, though, that the composition of the court is different now, and that there could be a different outcome this time – which is probably what he’s worried about.

If the USSC rules in favor of Wisconsin Right to Life, I’ll be interested to see how John McCain reacts, considering this bill was his baby but also his albatross (so to speak) as there are conservatives who can’t stand him because of the bill. The bill is something McCain doesn’t talk about often because he doesn’t want to remind conservatives of one of the key things they hold against him. No matter which way the court eventually rules, McCain will be in the position of having to comment either in support of the ruling or against the ruling, neither of which will play well with conservatives he’s trying to win over to his side, as the debate over the McCain-Feingold Act will renew all over again.

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