A Death Blow to McCain-Feingold

In a not wholly unanticipated move, the Supreme Court invalidated a key portion of the Bipartisan Campaign Reform Act of 2002 (BCFRA), also known as McCain-Feingold.


The decision in Citizens United v. Federal Election Commission was split. The majority opinion was written by Judge Anthony Kennedy, and the dissenting opinion was written by Judge John Paul Stevens (who is widely believed to be retiring after the present term). He was joined in dissent by Justices Sotomayor, Breyer, and Ginsburg. (The full text of the opinion can be found here.)

Like many cases of legislatively mandated restrictions on constitutional rights, BCFR was wrapped in the mantle of high-minded concerns for good government. Largely hyped in secret by the Pew Charitable Trusts and also by the usual media civic advancement poseurs, it was an effort to eliminate “soft money” in campaign financing; limit issue advocacy ads within 30 days of an election (when such speech would be most effective); and prohibit campaign ads paid for by corporations — including non-profit issue organizations — and unincorporated entities using any corporate or union funds.

It is far from clear that the legislation prohibiting such ads and expenditures proved any barrier to the creative campaign and special interest professionals, who certainly seem far more clever than the legislative branch at finding ways around such things. But it is clear that the Act posed substantial limits on the exercise of free speech when it is most valuable to both citizens and the notion of good government — namely, election time.

History of Supreme Court Treatment of the BCFRA

There was no way of avoiding the obvious restrictions on free speech imposed by the Act, though neither the sponsoring senators nor their colleagues seemed to understand or care. And President Bush clearly thought the worst portions of the Act would be struck down by the Supreme Court — although when he signed it, he expressed “reservations about the constitutionality of the broad ban on issue advertising.”


Led by then-Senate Majority Whip Mitch McConnell, a group of plaintiffs challenged the Act, arguing that, on its face, it violated the First Amendment. Surprisingly, the Court rejected this “facial challenge” (that is, one based only on the clear language of the Act rather than one based on a dispute under it). In McConnell v. FEC, 540 U.S. 93, the Supreme Court upheld much of the legislation, determining that their decision was required by Austin v. Michigan Chamber of Commerce, 494 US 652.

Today the Court held that the rule prohibiting corporations and unions from using general funds to make independent expenditures for “electioneering determinations,” or from using speech advocating the election or defeat of a candidate (2 U.S.C. Sec 441 b), constitutes an ongoing  prior restraint of free speech which must be invalidated. The Court thereby overruled the Austin decision, as well as the portions of the McConnell decision upholding the extension of the Section 441b restrictions on independent corporate expenditures.

The Court held that these restrictions constitute a ban on free speech backed by criminal sanctions, and that the Constitution bars permitting speech by preferred speakers while disfavoring speech by other, less favored, speakers. Deciding that Austin was poorly reasoned, the Court ruled it would not accord it further precedential value. (The case only involved a corporation, but the language of the opinion and logic suggest that it applies equally to the use of union funds.)


So, why the Court shift?

For non-lawyers, the Court’s changed stance might seem puzzling. However, it follows a line of reasoning which suggests the Court should always defer to the legislature, and should not prematurely assume constitutional infirmities until the facts make them clear, or if there appears to be no way the words can be applied in accord with the Constitution.

The factual back story and prior case law leading to this decision may be summarized as follows:

1. The Court decided Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) after various political parties and organizations brought a series of lower court challenges to the raising and expenditure of “soft money” by 527 organizations (entities claiming tax exemption as “political organizations” under the Internal Revenue Code), when these organizations had not registered as “political committees” under the Federal Election Campaign Act.  These challenges led to settlements with the FEC respecting the Act’s restrictions.

In this case, the Supreme Court took a first post-McConnell look at the Act in the context of an actual case, and trimmed its reach. A right-to-life group had taken out ads indicating a candidate’s position on the issue without advocating his election or defeat, and did so in the 30 day window in which advocacy speech is not permissible under BCFRA restrictions. The Court — as logic seems to have compelled — ruled that such a limitation was an unconstitutional restraint on free speech.


The Court took yet another stab at the Act a year later in Davis v. Federal Election Commission,  in which it signaled further concerns about the BCFRA when it declared unconstitutional the so-called “millionaire’s amendment” which allowed a higher legal limit on contributions for a candidate whose opponent was using personal wealth to outspend him.

The case today arose on facts which showed, as clearly as the preceding two cases, why the Act was unconstitutional. It might have been avoided if the FEC had exercised more restraint and judgment, but fortunately it behaved as bureaucracies always eventually do — overreaching and expanding its jurisdiction.

A non-profit group called Citizens United produced a film critical of Hillary Clinton which it intended to make available as an on-demand video. Anticipating the FEC would find this a criminal violation of the law, it sought injunctive relief precluding action against it. The FEC challenged the plaintiff organization and was successful, obtaining summary judgment against it. In so doing, it made the plaintiff’s case — to the Supreme Court’s satisfaction — that this portion of the Act constituted a forbidden prior restraint of free speech.

The Blog of Legal Times was present when the opinion was read, and reported:

Justice Anthony Kennedy announced the opinion in Citizens United v. Federal Election Commission, declaring that the ban on corporate expenditure “uses censorship to control thought” and amounts to a chill on “core political speech.” …

For more than 20 minutes, Justice John Paul Stevens read from his dissent, describing the majority opinion as “a radical change in the law.” Stevens said that long tradition and common sense justify treating corporations differently from individuals under the First Amendment. Stevens spoke haltingly and with emotion, summarizing his 90-page dissent.


To those for whom MoveOn.org and the countless left-wing 527 operations are the forces of truth and justice, and corporations the font of rich evil men of the 1930’s plutocratic cartoons, this case is a disaster for the commonweal.

But for those of us who think free speech is inviolate, and more important in the context of elections than it is in flag burnings or obscenity cases, this decision is a long overdue righting of a preposterous error of legislative judgment.


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