McCain-Feingold in the crosshairs?

posted at 12:55 pm on June 30, 2009 by Ed Morrissey

In the flush of attention given to the Supreme Court’s reversal of Judge Sonia Sotomayor on Ricci, the top court made another decision with potentially deep political implications.  Chief Justice John Roberts announced that the court had delayed a decision on Citizens United v FEC, a case expected to be considered on narrow grounds, in order to look at the wider implications of campaign finance regulation.  That could have deep implications for the BCRA, better known as McCain-Feingold, as the justices weigh free speech against the BCRA’s restrictions:

The Supreme Court announced yesterday that it will consider whether to uphold a ban on corporate spending in federal elections, a move that campaign finance experts said could have a dramatic effect on the 2010 and 2012 federal elections.

In a surprise move, the court said it would delay a decision on whether a conservative group’s film criticizing then-Sen. Hillary Rodham Clinton ran afoul of the McCain-Feingold campaign finance act.

Instead, the court scheduled a rare September hearing on whether the law itself raised constitutional questions and it said it would reexamine a 1990 decision that said restricting corporations from spending money from their general treasuries to support or oppose political candidates did not violate constitutional guarantees of free speech.

“This has the potential to be a blockbuster,” said Michael E. Toner, a former chairman of the Federal Election Commission. He said the issues have implications for “the whole architecture of the federal campaign financing system.”

The Supreme Court has danced around the BCRA’s onerous restrictions on political speech for years.  Roberts himself tiptoed around the question, as did Samuel Alito, in Austin, although Anthony Kennedy, Clarence Thomas, and Antonin Scalia all wrote that they believed these restrictions in the BCRA to be unconstitutional. Ted Olson, representing Citizens United, asked the court to overturn Austin and the previous ruling that the BCRA was constitutional, but observers believed Roberts would tiptoe around it again.

Apparently, Roberts has had a change of heart.  The delay allows both sides to prepare extensive written and oral arguments on the broader questions of constitutionality of the BCRA’s speech restrictions and the effects of striking them down.  It does not affect the limitations on campaign contributions — or at least not yet.

This is the best news regarding the BCRA that we have had since its passage.  The monumental overreach of McCain-Feingold and its obvious insult to the First Amendment will get another hearing from the court, and this time it appears they may be ready to acknowledge the failure of the previous court to protect freedom of political speech in the US.  Keep September 9th, the date Roberts has scheduled for argument, clear on your calendar.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

McCain-Feingold in the crosshairs?

Primary his ass.

Sorry… bitter feelings are resurfacing.

BPD on June 30, 2009 at 12:58 PM

we can only hope. it would be nice to fight fire with fire, and if the chief justice is all we got, time to suit up man!

gatorboy on June 30, 2009 at 12:59 PM

I wish I could be enthusiastic….but after Kelo…..

LimeyGeek on June 30, 2009 at 12:59 PM

Here’s hoping Kennedy has a pair.

spmat on June 30, 2009 at 1:00 PM

Time will tell.

capejasmine on June 30, 2009 at 1:01 PM

I’ll believe it when I see it happen.

jukin on June 30, 2009 at 1:01 PM

take it down! dismantle it!

moonbatkiller on June 30, 2009 at 1:01 PM

YES. Slash & burn that stupid McCain-Feingold pipe dream. McCain was destroyed financially by his own legislation.

portlandon on June 30, 2009 at 1:01 PM

jukin on June 30, 2009 at 1:01 PM

ditto

cmsinaz on June 30, 2009 at 1:02 PM

Well this explains perfectly why Bush signed McCain/Feingold into law. He thought the Supreme Court would toss it, just not when they would toss it. And he knew that one day he would put Roberts on the bench and that Roberts would lead the court in tossing it.

Everything makes sense now…

myrenovations on June 30, 2009 at 1:04 PM

YES. Slash & burn that stupid McCain-Feingold pipe dream. McCain was destroyed financially by his own legislation.

portlandon on June 30, 2009 at 1:01 PM

word up son.

moonbatkiller on June 30, 2009 at 1:04 PM

McCain-Feingold in the crosshairs?

Isn’t that tantamount to terrorism…or treason…or something? /

Disturb the Universe on June 30, 2009 at 1:04 PM

Wasn’t Bush pushing unlimited contributions and immediate disclosure campaign laws in competition with BCRA? HIs caving on this was an early signal of his weakness on domestic policies.

WashJeff on June 30, 2009 at 1:05 PM

The sooner gone, the better for MF. And not for free speech reasons. The loopholes that alow funneling of money through the party give the (unelected)DNC and RNC way too much power. It contributes to so much devisiveness in DC. If wee could get rid of MF and gerymandering to protect incumbants…..

percysunshine on June 30, 2009 at 1:06 PM

Isn’t that tantamount to terrorism…or treason…or something? /

Disturb the Universe on June 30, 2009 at 1:04 PM

It’s more like overturning McCain-Feingold will create more free speech terrorism per the CA state senator.

WashJeff on June 30, 2009 at 1:07 PM

OT: Obama net -2% approval… hahahah hahah hahah

gatorboy on June 30, 2009 at 1:07 PM

Will that be before or after the wise latina is sitting in Souter’s chair? Is it possible Souter will be gone, Sotomayor isn’t seated yet, and the decision could be 4-4?

Just spitballing, but it’s an intriguing possibility.

cs89 on June 30, 2009 at 1:07 PM

Let’s hope Clark Kent Roberts morphs into Superman. Still waiting for the 3rd branch to take Obama down a notch or three.

JiangxiDad on June 30, 2009 at 1:13 PM

I don’t know about this bill and I don’t pretend to know what the answer is, but I am concerned about all the money going into campaigns. Obama raised $400 million in his bid to buy the White House and a lot of it was under questionable circumstances. Obviously McCain Feingold did not stop that.

I know that it is wrong for the state to tell us how to spend our money or to limit the right to free speech. But I am not sure that money always equals free speech. That just does not feel right to me.

Terrye on June 30, 2009 at 1:13 PM

This should have been a no brainer for Roberts, but I am all for torching this insanity which has not only failed, but in the end violated our free speech rights.

Anything that makes McCain look like a moron for signing on to this, I loudly applaud.

But how will this help Meghan McCain?

freeus on June 30, 2009 at 1:15 PM

This is great news.

However, first we get Ricci 5-4, and if McCain-Feingold goes down would it be impossible for Obama and his band of thugs to consider Victor Mattiece’ing (Pelican Brief) a Conservative member or two on the Court?

there it is on June 30, 2009 at 1:17 PM

Will Sotomeyer be seated by then? What will the court make-up then if not? 4-4?

Goody2Shoes on June 30, 2009 at 1:19 PM

Remember, it’s terrorism if anyone criticizes a Democrat politician and it’s

racism

if anyone attempts to prosecute them for stealing elections, taking bribes or for shoveling taxpayer money to Democrat donors.

So the 1st Amendment is antiquated. Criticizing Democrat politicians will soon be a hate crime, punishable by imprisonment.

Democrats – because they’re more equal than you are.

NoDonkey on June 30, 2009 at 1:22 PM

I’m beginning to see a little light at the end of the tunnel.

cjs1943 on June 30, 2009 at 1:22 PM

portlandon on June 30, 2009 at 1:01 PM

I don’t think it was M/F so much as was the MSM and how much questionable campaign contributionage that never is investigated to Obozo.
Which Portland are you in, Don?

Lanceman on June 30, 2009 at 1:25 PM

NoDonkey on June 30, 2009 at 1:22 PM

+1

cmsinaz on June 30, 2009 at 1:25 PM

cjs1943 on June 30, 2009 at 1:22 PM

That’s just the government subsidized train coming to run you over.

lorien1973 on June 30, 2009 at 1:29 PM

Keep September 9th, the date Roberts has scheduled for argument, clear on your calendar.

penciled in…

Sotomayer will probably be seated by then….

cmsinaz on June 30, 2009 at 1:31 PM

Well, O’Conner is gone and replaced with Alito. Hopefully something will happen. Hopefully I won’t have to read such a well written Scalia dissent like we got from McConnell v. FEC.

clement on June 30, 2009 at 1:32 PM

Mightn’t this backfire? At the rate he’s going Obama will own most of the big companies by 2010.

OldEnglish on June 30, 2009 at 1:33 PM

Kill it.

It worked out soooo well this last election cycle.

/s

bluelightbrigade on June 30, 2009 at 1:45 PM

It’s more like overturning McCain-Feingold will create more free speech terrorism per the CA state senator.
WashJeff on June 30, 2009 at 1:07 PM

Just wondering if they’ve done their worst in trotting out the ‘T’ word in reference to the 1st amendment or if there’s any even more egregious terms they could use.

Or will they simply repeat the same accusation with a goal of suppressing the Bill of Rights?

Chainsaw56 on June 30, 2009 at 1:45 PM

Roberts is a real man. I am so encouraged to hear he is rolling up his sleeves for this one. BCRA is totally unconstitutional and everybody with a brain knows it. Our congress is full of busy rascals who skirt the actual laws and make up nonsense ‘regulations’ and call them laws. Practically anybody can be arrested for anything these days. We are like fish in a net.
It’s time to get out the scissors. Thanks Justice Roberts!

rishika on June 30, 2009 at 1:46 PM

McCain Feingold had a HUGE impact on the last election… and its loopholes allowed Bambi to raise large amounts of questionable donations.

The mantra that some Rights can be over riden, for the Greater Good only makes sense if it WORKS. If it is not working, if big money is still getting into politics AS IT IS, then the whole rational of limiting Rights goes away.

Romeo13 on June 30, 2009 at 1:48 PM

McCain Feingold had a HUGE impact on the last election… and its loopholes allowed Bambi to raise large amounts of questionable donations.

yeah it gave rise to SOROS’ influence in the elections…ever since this lously bill he’s been far more powerful…

right4life on June 30, 2009 at 1:50 PM

This is the best news regarding the BCRA that we have had since its passage. The monumental overreach of McCain-Feingold and its obvious insult to the First Amendment will get another hearing from the court, and this time it appears they may be ready to acknowledge the failure of the previous court to protect freedom of political speech in the US. Keep September 9th, the date Roberts has scheduled for argument, clear on your calendar.

I have a genuine question, because I admit to not understanding how a particular phrase is used. How does this not smack of judicial activism? Aren’t we, right now, cheering for SCOTUS to overturn a Legislative action? I am asking out of genuine confusion. Is there a particular nuance to judicial activism that I’m just not getting?

Personally, I would favor overturning M/F. But I’m trying to understand the boundary between proper judicial overview, and activism. Can anyone enlighten me?

nukemhill on June 30, 2009 at 1:55 PM

Overturning this would be a good thing for free speech specially with Obama and his lackeys in charge.

roux on June 30, 2009 at 1:56 PM

I need some more good news. This would do the trick.

SouthernGent on June 30, 2009 at 2:03 PM

Personally, I would favor overturning M/F. But I’m trying to understand the boundary between proper judicial overview, and activism. Can anyone enlighten me?

nukemhill on June 30, 2009 at 1:55 PM

Its all a matter of perspective… one mans Judicial Acitvism will be anothers Good Decision.

For me? It really boils down to anytime the Supremes limit what the Government does… its a good decision. Anytime they expand or allow the expansion of Federal Power, its Judicial Activism.

Roe vs. Wade was Judicial activism, IMO, because they forced a Federal decision (one made by them) on a political question which had been in the States Jurisdiction.

Romeo13 on June 30, 2009 at 2:06 PM

If the SCOTUS overturns McCain-Feingold, I do believe that the Founding Fathers will rest a LOT easier as the Constitution is finally honored.

No more end runs around the First Amendment, please.

And an aside: ANY politico who voted for the damn thing in the first place should be shown in the door in the next election cycle, period.

itzWicks on June 30, 2009 at 2:11 PM

Signing a law that he believed was unconstitutional as a personal favor to McCain will alway diminish GW Bush to me.

We all know that McCain sucks and is a scumbag, but what the hell was W thinking by punting this seditious POS bill to the clowns on the Supreme Court?

The First Amendment is the first one for a reason…

TexasJew on June 30, 2009 at 2:12 PM

Romeo13 on June 30, 2009 at 2:06 PM

I agree that it’s certainly a matter of perspective, although I view ‘Judicial Activism’ as the injection of personal ideology into a judicial interpretation, rather than dispassionate, clinical analysis of the original intent of the law – from the local/state/federal level all the way up to the Constitution itself.

RE: Roe v Wade – an ideological desire to justify and protect a ‘right’ to abortion, resulted in a perverse misinterpretation of the Constitutional concept of privacy. The decision is indefensible from an originalist standpoint, and should be voided.

LimeyGeek on June 30, 2009 at 2:13 PM

The First Amendment is the first one for a reason…

TexasJew on June 30, 2009 at 2:12 PM

…closely followed by the Second, for a reason ;)

LimeyGeek on June 30, 2009 at 2:14 PM

The First Amendment is the first one for a reason…
TexasJew on June 30, 2009 at 2:12 PM

…closely followed by the Second, for a reason ;)
LimeyGeek on June 30, 2009 at 2:14 PM

Without the Second Amendment, there is no First Amendment.

Chainsaw56 on June 30, 2009 at 2:25 PM

Which Portland are you in, Don?

Lanceman on June 30, 2009 at 1:25 PM

Peoples Republic of Oregon.

portlandon on June 30, 2009 at 2:29 PM

Without the Second Amendment, there is no First Amendment.

Chainsaw56 on June 30, 2009 at 2:25 PM

I would say – Without the Second Amendment, everything else is just words.

LimeyGeek on June 30, 2009 at 2:36 PM

I would say – Without the Second Amendment, everything else is just words.
LimeyGeek on June 30, 2009 at 2:36 PM

Agreed, words that can be ‘Changed’ at a whim.

It should be readily obvious why a government would want to disarm it’s Citizens, and that would be make them subjects.

Chainsaw56 on June 30, 2009 at 3:07 PM

I’m afraid to hope…

ladyingray on June 30, 2009 at 3:09 PM

Chainsaw56 on June 30, 2009 at 3:07 PM

Agreed.

Sadly, by the time I moved here, I would have to say that there’s only about 20% of the population that actually deserves to call themselves “Americans”. The rest are merely cowardly sheeple being farmed for votes.

LimeyGeek on June 30, 2009 at 3:10 PM

Finally… green shoots.

Chaz on June 30, 2009 at 3:12 PM

I don’t know about this bill and I don’t pretend to know what the answer is, but I am concerned about all the money going into campaigns. Obama raised $400 million in his bid to buy the White House and a lot of it was under questionable circumstances. Obviously McCain Feingold did not stop that.

I know that it is wrong for the state to tell us how to spend our money or to limit the right to free speech. But I am not sure that money always equals free speech. That just does not feel right to me.

Terrye on June 30, 2009 at 1:13 PM

I’m convinced that Money will find itself in politics no matter what’s done.

I’m all for what Bush suggested: Unlimited Donations… but EVERY dollar must be made public. None of this private small donations crap.

That way, we know who’s saying what with their money.

Chaz706 on June 30, 2009 at 3:33 PM

nukemhill on June 30, 2009 at 1:55 PM

Romeo13 on June 30, 2009 at 2:06 PM

I agree that it’s certainly a matter of perspective, although I view ‘Judicial Activism’ as the injection of personal ideology into a judicial interpretation, rather than dispassionate, clinical analysis of the original intent of the law – from the local/state/federal level all the way up to the Constitution itself.

LimeyGeek on June 30, 2009 at 2:13 PM

Another way to think of it is this: When SCOTUS creates new “rights” or “federal government powers, ” (via penumbras of emanations from specific guarantees in the US Constitution,) it is judicial activism.

ConScribe on June 30, 2009 at 3:48 PM

Is it possible that an auditing of the finances of the last Presidential election be ordered as this case is considered? The illegal financing of the idiot messiah’s campaign, which was 1000 times worse than anything that happened during Watergate, should be grounds for his removal from office (and subsequent jailing). How is it that this glaring and blatant illegality has been ignored by everyone?

What ticks me off more than anything is that McCain, himslef, refused to defend his own un-Constitutional bill against a guy whose campaign financing actually broke normal campaign laws! It’s time that the idiot messiah’s finances were really audited and he was escorted by our military to a long vacation in Costa Rica … along with all of the criminals, morons, misfits, and traitors in his cabinet.

progressoverpeace on June 30, 2009 at 3:49 PM

Is it possible that an auditing of the finances of the last Presidential election be ordered as this case is considered?

progressoverpeace on June 30, 2009 at 3:49 PM

Never gonna happen, alas.

ConScribe on June 30, 2009 at 3:54 PM

One can only hope. Never in my lifetime has the First Amendment needed USSC reaffirmation than now.

petefrt on June 30, 2009 at 3:54 PM

Never gonna happen, alas.

ConScribe on June 30, 2009 at 3:54 PM

Not even a full-blown audit … just a question about it … just a tiny, little mention of the totally anonymous donations that were enabled …

And I’m not even getting into the $800,000 that the idiot messiah gave to ACORN and called “lighting” or whatever.

progressoverpeace on June 30, 2009 at 3:59 PM

Is it possible that an auditing of the finances of the last Presidential election be ordered as this case is considered?

progressoverpeace on June 30, 2009 at 3:49 PM

I sure hope it’s being pursued. If we sent in our sharpest legal beagles, this case could become a platform for some great opportunities.

petefrt on June 30, 2009 at 4:00 PM

portlandon on June 30, 2009 at 2:29 PM

I moved here to Whorelando 20 years ago from SE near Mt. Tabor. Couldn’t stand the weather.
Of course, I was a young man in my 20′s. Loved Portland but don’t think I could deal with living in San Fran North/Seattle south at my age with my political orientation.

Lanceman on June 30, 2009 at 4:13 PM

progressoverpeace on June 30, 2009 at 3:59 PM

Could dubious financing be mentioned, sure…

Might there even be some substantive (albeit probably private) digging and unearthing of shenanigans, let alone a forensic audit? May be, but of course, those (shenanigans) would be “bipartisan,” or else the discoveries would be a partisan “witch-hunt” and “mudslinging.” (Recall Sen. Thompson’s Senate committee hearings on the 1996 Presidential elections financing.)

Why would the 2008 Presidential campaign finance reviews likely be private? Well, check out the timing on McCain-Feingold reconsideration. In September 2009, the White House, US Senate, US House and the FEC will be controlled by those with the most to lose from any kind of respectable audit. So, no House or Senate hearings and most certainly no cooperation (FOIA responses) from the FEC any time soon. What of the Obama campaign? Don’t bother, they’d probably be directing the cover-up. (And there’d be one for the ages!)

And how about that MSM asking all the tough questions and doing the hard-hitting investigative reports? That’s right, naught there. May be a lot of somethings will change in 2 and half months, but I rather doubt it.

We will have to rely on our trusty, long, elephant memories plus any private, non-MSM investigations we can get!

ConScribe on June 30, 2009 at 4:33 PM

I moved here to Whorelando 20 years ago from SE near Mt. Tabor. Couldn’t stand the weather.
Of course, I was a young man in my 20’s. Loved Portland but don’t think I could deal with living in San Fran North/Seattle south at my age with my political orientation.

Lanceman on June 30, 2009 at 4:13 PM

Hello former Portlander!

Portland does have it’s charms. You are right about it being San fran/seattlesouth though. Portland is for Lesbians what San fran is for Gay men. The lib women up here wear flannel bikinis,don’t shave their legs, and spend the rest of the time in Home depot. It’s one huge pre-op sex change town. It’s hard being a conservative behind the enemy lines, but there is a resistance movement here. =)

portlandon on June 30, 2009 at 5:14 PM

portlandon on June 30, 2009 at 5:14 PM

You should go into business selling clams and rugs. I hear they have quite an appetite for both.

LimeyGeek on June 30, 2009 at 5:25 PM

Primary his ass.

Sorry… bitter feelings are resurfacing.

BPD on June 30, 2009 at 12:58 PM

Write JD to encourage that.

Tim Burton on June 30, 2009 at 5:51 PM

Wasn’t Bush pushing unlimited contributions and immediate disclosure campaign laws in competition with BCRA? HIs caving on this was an early signal of his weakness on domestic policies.

WashJeff on June 30, 2009 at 1:05 PM

Pres. Bush didn’t veto BCRA but instead kicked it over to the Supreme Court, I suspect, because McCain had cut the legs out from under him on this Democratic campaign issue.
.
I suspect that McCain and the DNC had maneuvered Pres. Bush into choice of accepting BCRA and hoping that the Supreme Court would later declare it unconstitutional and have a reasonable chance of Republican victory in the 2004 elections
OR
veto BCRA, suffer defeat in 2004 and watch the Democrats pass an even more onerous bill in 2005.

Mike OMalley on June 30, 2009 at 10:29 PM

Wasn’t Bush pushing unlimited contributions and immediate disclosure campaign laws in competition with BCRA? HIs caving on this was an early signal of his weakness on domestic policies.

WashJeff on June 30, 2009 at 1:05 PM

Without doubt Bush and Rove knew that BCRA was a poison chalice for the Republican Party.
.
It is hard to image why Bush, Cheney, Rove et al would desire to gut campaign funding for the Republican party even if they were soft on “domestic policies”. Why not veto BCRA, win in 2004, 2006 and 2008 and go soft on domestic policies in 2005, 2006, 2007, 2008… anyway. No, more likely Senator Maverick-McCain forced the Republican Party to drink a cup of hemlock.

Mike OMalley on June 30, 2009 at 10:39 PM

The difference between judicial activism and judicial review is simple. If they strike down the BCRA as violating the 1st amendment, and do nothing else, they are reviewing the legislation for constitutionality.

If, on the other hand, they “change” the legislation to something they prefer, even if it’s something you like, it is activism. The judiciary isn’t there to write (or rewrite) laws, they are there to judge the constitutionality of the laws that are passed by the legislative arm of the govt, and approved by the executive branch, and then give a simple thumbs up or down.

This is why Roe was activism, there is no right to privacy spelled out in the Constitution. It simply is not there. They had to invent one, knowing full well that they were the final authority on what the Constitution says.

This is also why striking down the BCRA (and stopping there) would be a simple review. All they are saying is that the law, as written, is unconstitutional. Congress can then try again, but not the USSC.

runawayyyy on July 1, 2009 at 10:40 AM