Replies

Contrary to early press reports, Friday'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 have been whistling pasat the graveyard.

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 usually agree on the reasons 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, or what are called "electioneering communications" in the bill. 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 does not automatically apply to any ad that even mentions a candidate, 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 instead of having a complete ban on issue ads for 90 days every two years, we have a perpetual ban on any ads that "promote, support, attack, or oppose" a candidate. This is worse, I think, 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 was an "electioneering communication," meaning it met the 30/60 day ban definition. But now coordinated activity 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.