McCain-Feingold Decision is no Victory

Contrary to press reports, yesterday's decision in McConnell v. FEC is not a big victory for free speech. It strikes down parts of the McCain-Feingold bill, but leaves other parts - including some of the most offensive - intact, and leaves the law more restrictive than it was before McCain-Feingold passed. Of course, the Supreme Court will have the final say, but I have been warning here for a year that those who think the courts will toss this law in the dumpster are whistling in the dark.

Here are the basic contours of the 3 judge panel's ruling. First, the decisions striking parts of the law are, in most cases, 2-1. Second, the two judges usually in the majority, Henderson and Leon, do not agree on the reason why. Henderson relies on the First Amendment, but Leon generally relies on principles of federalism. So the court does not speak with a clear voice, meaning its decision will get less weight with the Supreme Court.

On to specifics. Let's start with the odious 30/60 day ban on ads. Yes, this was struck down. But the court then upheld the "back-up" definition included in the law, and in most ways this is worse than the 30/60 day ban. While it is not automatic, it applies to any ad that "promotes, supports, attacks, or opposes" a candidate. Well, argubly that's almost any ad that names a candidate, isn't it. "Bush's tax cut is a great idea, but Senator Snowe doesn't think so. Call her, and tell her we need the full Bush tax cut." That would probably be considered an ad that opposes or attacks Snowe, especially since - to make it worse - the Court struck from the that back-up definition a requirement that the ad "be suggestive of no other meaning." So now the ban on issue ads that mention a candidate essentially applies all year. This is worse than the 30/60 day ban.

Secondly, by defining "electioneering communications" so broadly, the Court's decision means that a lot more ads will violate the law's limits on coordinated activity. Before yesterday's ruling, coordinated activity between a candidate and citizens' group was only limited if it "expressly advocated the election or defeat" of a candidate, or met the 30/60 day ban definition. But now it will be limited year round if it meets the broader "promotes, supports, attacks or opposes" test discussed above.

Third, the Court upheld a whole raft of new disclosure provisions. Your ability to speak anonymously has been radically curtailed in a way never before upheld under the Constitution.

The political parties did OK - the court struck down most of the ban on their taking soft money. But even there, the court did hold that soft money to party's can be limited if used to run ads mentioning a candidate.

On top of all this, the court could not agree on a statement of facts. This is important because findings of fact get more deference from the Supreme Court than findings of law. So even though striking down parts of the law, there are no strong "findings of fact" that would set up the Supreme Court to uphold their decision.

There are good things. The court unanimously struck down the ban on contributions by minors. It did strike down most of the ban on soft money for parties. But non-party groups - the NRA, Right to Life, Club for Growth, etc. - and ordinary citizens (except for minors) got hammered. We didn't get a good statement of facts for the Supreme Court. We got blitzed on the 30/60 day ban, as the Court upheld an even worse rule. We lost rights to speak anonymously. And all this comes about because the GW Bush appointee (Leon) sided again and again with McCain-Feingold.

Over-all, I would consider this battle a draw. But given the high hopes going in, it's a defeat.

Yea, I heard all of these people here when we opposed GW signing it thtat GW was soooo politically savy to do it because the SC would throw it out. We will see & again the true conservatives will get shafted. Noth'in new. Happens unanimously under this "Two-Party Cartel".

Before yesterday's ruling, coordinated activity between a candidate and citizens' group was only limited if it "expressly advocated the election or defeat" of a candidate, or met the 30/60 day ban definition. But now it will be limited year round if it meets the broader "promotes, supports, attacks or opposes" test discussed above.

Actually, no decision of any court can make legistation more restrictive, as the power to legistlate is left to the legislative branches.

It strikes me that any piecemeal "striking" of provisions in this law is likely to have profound partisan political effects that judges should not be in the business of creating.

This law in its totality had been very carefully balanced, through compromises in the legislative process. Both political parties were constantly on the alert for provisions that would hurt them more than the other guys. If something like that got in, it was only in return for some other provision that favored them. This law would never have gotten out of Congress if, on balance, it provided clear advantage to one party over the other.

Striking provisions at random, with no consideration given to balancing the effects, is a fright scenario for both parties. Given what this law is about, and the considerable time and expense spent on making it "politically neutral," the courts should throw the whole thing out if they have to throw out any of it. To do anything else is to tilt the political playing field. That is no role for the courts.

I wrote:

To which logjam wrote:

Actually, no decision of any court can make legistation more restrictive, as the power to legistlate is left to the legislative branches.

To which I now respond:

Actually, it does make it more restrictive, because the Federal Elections Commission had based it regulations on the 30/60 day rule; but substituting for that the more sweeping "backup" definition that the Court upheld means it will apply year round.

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