McCain-Feingold in the crosshairs?

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.

Jazz Shaw Jun 22, 2021 6:01 PM ET