McCain-Feingold To Get Another Look From SCOTUS

Written by Brian Garst, Posted in The Courts, Criminal Justice & Tort

Perhaps there is hope after all that basic freedoms of expression will be returned to the people.

The Supreme Court agreed yesterday to revisit the landmark 2002 legislation overhauling the nation’s campaign finance laws, moving to settle the role of campaign spending by corporations, unions and special interest groups in time for the 2008 presidential primaries.

It would be the first time the court has reviewed the McCain-Feingold law of 2002 since justices ruled 5 to 4 three years ago that the act was constitutional. Since then, Justice Sandra Day O’Connor, who was in the majority, has been replaced by Justice Samuel A. Alito Jr.

At issue in the case is the question of whether so-called issue advocacy ads paid for by the general funds of special interest groups and broadcast in the period before a federal election may mention specific candidates. A three-judge panel in Washington last month overturned that prohibition, which is one of the key provisions of the law known formally as the Bipartisan Campaign Reform Act.

“The stakes are enormous,” said Michael E. Toner, a Federal Election Commission member who served on President Bush’s campaign in 2000. “We’re watching this case very closely.”

The entire law should be thrown out as unconstitutional. The question of whether or not an ad attempts to “influence” elections should be irrelevent, though that’s exactly the question the courts are addressing. In practice, expression of all opinions “influences” elections for the simple fact that votes are cast based on opinions, and though opinions are formed based on a great many factors, one of those certainly is the expression of free ideas made by fellow citizens.

You cannot make a logical differentiation between campaigning and freedom of expression; the two are inseverably linked. Rather, if the Constitution is to have any meaning, they should be so linked.

. . .Richard L. Hasen, an election law expert at Loyola Law School in Los Angeles, said the Supreme Court challenge is “going to be a prime opportunity for opponents of campaign regulations to make some headway in watering down the standards.”

. . .What could make the outcome different this time, he said, is “simply the replacement of Justice O’Connor with Justice Alito.”

Here’s hoping.

Hat tip: Club for Growth

campaign finance free speech