Ostensibly, President Bush signed into law what some believe to be an unconstitutional Campaign Finance Reform bill (McCain Feingold), with a view toward leaving it to the SCOTUS to determine actual constitutionality, as the Judicial branch ought. The conventional wisdom was that in spite of the Democrats having inserted a presumed unconstitutional provision (attempting to force a Bush veto), Bush instead would sign the bill, the SCOTUS would reject it (in whole or in part), Bush would get the political gain of having signed the bill, and the country would be unharmed.
The problem with that view is the current makeup of the Supreme Court may likely affirm the bill as constitutional:
There are at least three or maybe four justices who would likely rule against:
Rehnquist, Scalia, Thomas, Kennedy**
Four justices who would likely affrim in favor:
Ginsberg, Souter, Stevens, Breyer
And O'Connor would be the swing vote, as she often is when the court is split.
So there are at least two possibilities of affirming CFR:
a 4-5 split in favor
against - Rehnquist, Scalia, Thomas, Kennedy**
for - Ginsberg, Souter, Stevens, Breyer, O'Connor*
or a 3-6 split in favor
against - Rehnquist, Scalia, Thomas
for - Ginsberg, Souter, Stevens, Breyer, Kennedy**, O'Connor*
And one possibility of CFR being rejected:
against - Rehnquist, Scalia, Thomas, Kennedy**, O'Connor*
for - Ginsberg, Souter, Stevens, Breyer
The SCOTUS ruling on June 25, 2001 illuminates how the justices would be inclined to split Court Upholds Party Spending Limits
"In the court's split ruling today, swing-vote Justice Sandra Day O'Connor* joined Souter and the court's other moderates and liberals, justices Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens. Another swing-voter, Justice Anthony M. Kennedy**, joined Chief Justice William H. Rehnquist and fellow conservative justices Antonin Scalia and Clarence Thomas in dissent."
Clearly, there may other variations on this theme, but the essential point is that of a very narrow split with odds in favor of affirming the bill, and not the 'slam-dunk' rejection most implicitly assume.
Rich Lowery writing 3/21/02 for The National Review Online here on the President's awareness of CFR's unconstitutional provisions:
So, President Bush thinks the campaign-finance-reform bill he's going to sign "does present some legitimate constitutional questions."
Ramesh Ponnuru writing 3/25/02 for the National Review Online here on the President's prerogative and responsibility to veto unconstitutional bills:
Just trying to add a couple more facts to the debate.notably...
"Presidents and legislators swear an oath to uphold the former [Constitution]. But a constitutionalist political culture is hard to sustain if the Constitution is held to be the exclusive property of an unelected elite. In that case, lawmakers will not look to the Constitution when doing their jobs-a phenomenon all too evident in the campaign-finance debate. A judicial monopoly on constitutional interpretation poses the additional danger of reducing the Constitution to a mere grant of judicial power."
and...
"If President Bush signs the bill, he will have no such defense. In the month of his inauguration, he said that he regarded key provisions of the bill as unconstitutional and would therefore veto it. Those provisions are still there."
Ah, yeah. Right. I hope you have better luck with your predictions in the Triple Crown.
BTW, I ain't buying that stuff about "Lurked since '98" on your profile page. There's nobody in the world that could hold out that long.
There is only ONE portion of the bill being challenged. That is the issue ad ban. Of course the rest will be affirmed because there is no other1st amendment violation as has already been established under previous CFR laws.
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Texasforever: There is only ONE portion of the bill being challenged. That is the issue ad ban. Of course the rest will be affirmed because there is no other 1st amendment violation as has already been established under previous CFR laws.
There does remain the possibility that SCOTUS will reject the idea that the bill is severable. That appears to be a murky area, and one that is very difficult to predict. Heck, SCOTUS could refuse to hear the case altogether, although I admit that's an unlikely scenario.
There is another possibility few people are considering. Perhaps this is a bit ghoulish, but what if one of the conservative members died? The makeup of the court is not set in stone.
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Texasforever: Tell me, a court that has ruled that virtual child pornography, Christ in a bottle of urine and burning the flag is protected speech is going to let the issue ad ban stand?
Probably not. That said, how sure of this are you? I would say there's a 90% chance the ban will be tossed by SCOTUS. Now let's take this a step further: do this enough and you're bound to get burned by that pesky 10% at some point. When constitutional guarantees are at stake, those "10%" instances will erode rights quickly - especially when your timeframe is decades/centuries.
My stance is, it's for this reason the Founders envisioned a system where proposed legislation had to pass three (really, five) separate bodies before becoming law: committee, the House, Senate, White House, SCOTUS. If the first four abdicate their responsibility we've lost one of the mechanisms the Founders provided for eliminating bad law.
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Luis Gonzalez: The big difference here being the fact that the current SCOTUS has already identified political donations as speech, and protected under the First.
True, but as I stated above, the current SCOTUS could change at any time. They could refuse to even ehar the case, for all we know. Everybody thinks they can predict what the SCOTUS will do, but I maintain they're a notoriously unpredictable group.
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Howlin: Ah, yeah. Right. I hope you have better luck with your predictions in the Triple Crown. BTW, I ain't buying that stuff about "Lurked since '98" on your profile page. There's nobody in the world that could hold out that long.
Starwind posted a well-constructed, thoughtful post. The best you could do is make personal attacks? And you wonder why folks dismiss your comments out of hand. Unbelievable.