Supreme Court deals blow to BCRA

posted at 7:33 am on June 27, 2008 by Ed Morrissey

Little noticed in the celebration of the Heller decision was a Supreme Court ruling that dismantled another area of the BCRA, or McCain-Feingold campaign-finance reform bill.  In Davis v FEC, the 5-4 ruling stripped the “Millionaire’s Amendment from the BCRA, calling its juggling of fundraising limits dependent on the personal contributions of one’s opponent unconstitutional.  Samuel Alito wrote for the majority in striking down the “unprecedented penalty” for those who self-fund, and that may portend even bigger challenges to the BCRA:

Justice Samuel A. Alito Jr. wrote in the majority opinion that Jack Davis, the wealthy New York industrialist who brought the lawsuit, was forced “to choose between the right to engage in unfettered political speech and subjection to discriminatory fundraising limitations” and that “the resulting drag on First Amendment rights is not constitutional.”

Campaign finance lawyers pored over the decision yesterday, and they concluded that while the Millionaire’s Amendment represents only a small and discrete component of the McCain-Feingold law, the justices’ opinion could have lasting significance.

“What’s most significant here is what this means for the future,” said Rick Hasen, a professor at Loyola Law School. “It tells us that the long-standing limits on corporate and union campaign spending are in grave danger.”

James Bopp Jr., an Indiana lawyer who has brought several court challenges against the legislation, known formally as the Bipartisan Campaign Reform Act, said that yesterday’s ruling was the fourth in a series that has steadily chipped away at the foundations of the law.

“What we’re seeing is the court wants to limit the ability of the government to regulate political speech,” he said. “I think there are few restrictions on political speech that will survive this court’s analysis.”

Well, we can certainly hope so.  The BCRA, no matter how well-intended it might be, is on its face a government restriction on political speech.  It restricts who can buy advertising for political issues and when, with one section prohibiting people outside of a campaign from mentioning incumbents in ads for the last 60 days before an election.  Not for nothing has this been called the Incumbency Protection Act.

The irony is that a President McCain would likely nominate judges who would continue to break apart the BCRA, pledging as he has to appoint jurists in the mold of John Roberts and Samuel Alito, who have consistently ruled against the BCRA.  Barack Obama has pledged to look for jurists who prioritize social justice, activists who would be more likely to find emanations from penumbras in order to justify the BCRA and anything else they found desirable — like another 5-4 decision in this term, the execrable Boumediene.

Andrew Malcolm finds another irony involving Barack Obama and John McCain in this decision:

In his initial run for the U.S. Senate in 2004, this fellow Barack Obama, who we seem to be hearing a lot about these days, was one of the very first beneficiaries of the so-called millionaire’s amendment that the U.S. Supreme Court struck down Thursday.

Obama’s main Democratic primary foe that year was Blair Hull, a wealthy investor who poured $28 million of his own money into the campaign.

But under that same national campaign finance law, Hull’s immense personal spending on himself released Obama from the $2,100 per donor cap then in effect.

And it allowed him to raise his own campaign money in increments up to $12,000 per donor.

His campaign manager at the time thinks Obama would have beaten Hull anyway; it was a crowded race, and Obama expected to get a third of the vote.   The extra money paid for two more weeks of heavy advertising, and Obama won with an outright majority of 53%.  However much money Obama raised, it certainly wouldn’t have exceeded Hull’s $28 million, which means that Hull had to be a rather unappealing candidate.

Still, it does seem a little ironic that Obama got a boost from a now-rejected portion of a law that McCain quarterbacked.  The law of unintended consequences apparently is immune from Supreme Court rulings.


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Not to go off topic right out of the gate, but how does Obama get away with a backdrop like that?

BigD on June 27, 2008 at 7:53 AM

I assume he was speaking at a church.

Ed Morrissey on June 27, 2008 at 8:04 AM

Well, how does get away with speaking at a church then? No, I know the answer. He’s a Democrat. Double standard. Sorry to digress from the topic at hand, Ed.

BigD on June 27, 2008 at 8:13 AM

We need McCain picking our next Supremes, but considering his BCRA, he can count on the entire blogosphere to do some serious vetting, pre- and post-selection.

Maquis on June 27, 2008 at 8:49 AM

The different rules for different people is a hallmark of the Democrat party. It’s time we took that down.

tarpon on June 27, 2008 at 8:49 AM

It has long puzzled me how John McCain can latch onto patently wrong-headed, even unconstitutional, legislation and hang onto it like a dog with a particularly tasty bone. I think the answer might be that he is temperamentally prone to ’causes’, even though he might not understand the subtleties or science involved (campaign finance, illegal immigration, ‘climate change’, etc.). This can be an admirable trait in a leader, but also a foolish one if once he has decided on a course of action, he is unwilling or unable to listen to new information.

The concept of the ‘BCRA’ was flawed from the get-go (as sponsorship from Russ Feingold should have alerted everyone), but apparently Sen. McCain would not listen to Constitutional or other caveats. He has similarly bought into the ‘climate change’ mythology, without (apparently) any interest in learning more about the Earth’s climate or the serious problems with the computer models used so disingenuously by the ‘climate change’ proponents.

But it looks like McCain is all we’ve got to stop the Obambi parade of glassy-eyed youth and aging hippies. Never has ‘the lesser of two evils’ dilemma been more acute. But there’s no choice. McCain may often be misguided, but Obambi is a tool of interests which would sell this country down the river.

MrLynn on June 27, 2008 at 9:05 AM

I think McCain firmly believes that the huge dollar amounts in campaigns endangers the integrity of our elected officials. His concerns are justified, I think. But I think McCain got talked into believing that BCRA was a way of effecting campaign finance reform that was compatible with the First Amendment. The Bulkley v. Valeo decision could be read to leave some doors open for at least a good chunk of BCRA, and so forth.

I don’t absolve McCain of responsibility for ensuring that the laws he creates and votes for are constitutional. Indeed, his oath of office requires him to uphold the constitution–not violate it. But McCain is a true believer in the evil of money in elections and probably motivated him to ignore that little First Amendment angel on his shoulder.

Outlander on June 27, 2008 at 10:21 AM

This is the difference between McCain and Obama. McCain sincerely believes in doing what is right and has the will and determination to fight for it. Unfortunately, he can be mislead as stated by OUTLANDER and others, that result in truly unintended consequences. Obama on the other hand, knows full well what he is doing, and while dodging and flip-flopping to hide the truth and keep afloat, either Obama or the people behind him know that his policies are intended to undermine freedom and prosperity in America.

jerseyman on June 27, 2008 at 10:49 AM

We need McCain picking our next Supremes, but considering his BCRA, he can count on the entire blogosphere to do some serious vetting, pre- and post-selection.

Maquis on June 27, 2008 at 8:49 AM

How bizarre is it that McCain has promised to nominate judges who will find his signature legislation unconstitutional? And how believeable?

misterpeasea on June 27, 2008 at 11:00 AM

misterpeasea on June 27, 2008 at 11:00 AM

I believe it because I wouldn’t know who to vote for if I didn’t believe it.

Al in St. Lou on June 27, 2008 at 5:19 PM