Supreme Court deals blow to BCRA

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.