June 25, 2007

The BCRA Loses In Supreme Court Decision

The Supreme Court has struck one aspect of the Bipartisan Campaign Reform Act of 2002 (BCRA), commonly known as the McCain-Feingold Act, forbidding issue ads in the final 60 days before a general election. On a disappointing one-vote margin, the court ruled that participation in the electoral system outweighs considerations of undue influence:

The Supreme Court loosened restrictions Monday on corporate- and union-funded television ads that air close to elections, weakening a key provision of a landmark campaign finance law.

The court, split 5-4, upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections.

The case involved advertisements that Wisconsin Right to Life was prevented from broadcasting. The ads asked voters to contact the state's two senators, Democrats Russ Feingold and Herb Kohl, and urge them not to filibuster President Bush's judicial nominees.

While this is a good start, it does not eliminate the BCRA's restrictions altogether. It ruled that issue ads do not equal partisan campaign ads, and that the Wisconsin groups ads did not amount to a challenge to an incumbent. It does, however, make it much easier for outside groups to encourage voters to "contact their representatives" and identify incumbent Senators and Representatives in the final days of an election.

Unfortunately, only three justices appear ready to throw out the broader restriction on campaign advertisements, and therefore on free political speech. Unsurprisingly, Antonin Scalia and Clarence Thomas argued for the broader ruling, but both John Roberts and Samuel Alito opted for a more careful approach. However, the surprise came from Anthony Kennedy, the moderate and now the swing vote on most matters, who sided with Scalia and Thomas.

Roberts probably wanted to gain a stronger consensus before declaring that portion of the BCRA unconstitutional. However, it represents a lost opportunity to gut the worst attack on free political speech in America since the Sedition Act of the first World War. Roberts -- and the rest of America -- may have a long wait before getting another opportunity to remind Congress of the explicit language of the First Amendment.


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Comments (14)

Posted by GeneB | June 25, 2007 10:33 AM

Although this ruling is a little disappointing, I can hardly wait for BCRA II, The resurrection of the Fairness Doctrine.

Posted by Lew | June 25, 2007 10:39 AM

Maybe its a kind of legal "trial balloon" to see what the reaction is among the legal cognoscenti, and establish the two newest justices as "moderates" with the liberals who had to swallow hard when they voted to confirm them. If the reaction is benign or supportive, the new justices are powerfully positioned to be much stronger next time. If the reaction is hostile, they've established their moderate "cred" and can continue to rule narrowly and modestly.

Posted by Immolate | June 25, 2007 10:40 AM

I'm no lawyer, and I don't play one on TV, but don't the parts of a ruling that become settled law from a precedent perspective have to go directly to the issue being appealed? I mean, just because a BCRA issue is appealed to the Supreme Court doesn't give the Supreme Court the latitude to toss the whole BCRA out on its ear, does it?

Posted by Rose | June 25, 2007 10:46 AM

While this is a good start, it does not eliminate the BCRA's restrictions altogether. It ruled that issue ads do not equal partisan campaign ads, and that the Wisconsin groups ads did not amount to a challenge to an incumbent.


The idea in AMERICAN politics that an INCUMBANT has a CONSTITUTIONAL RIGHT to be protected in his office from ELECTION CHALLENGES is soo preposterous AND DISGUSTING, that to me, it is worth tossing the SUPREME COURT JUDGES who do not toss it.
It should have gotten the CONGRESSMEN who voted for it tossed from office.

I cannot say I am surprised at the reticence of Roberts and Alito.
For 20 years, everything has been decided on a 5/4 split - but they decide Right isn't "RIGHT" unless the SOCIALISTS on the bench WILL AGREE WITH THEM????

I would give anything if I could have been shocked by that - I guess all that hype was just too suspicious, to me.

Remembering, that as a FORMER PROSECUTOR, Fred Thompson supported and voted for that bill. UGH!

Posted by Lew | June 25, 2007 11:00 AM

Well Immolate, that's really one of the problems that conservatives have been howling about forever. The Court decides the limits of its own power and has done so since John Marshall proclaimed that it possessed the "sole" power to interpret the Constitution in 1803. They've decided that they can create rights from thin air and watch others be gutted if they see a "compelling government interest". They can rule narrowly or broadly and they can arbitrarily proclaim what issues they take on for whatever reasons they like. There doesn't even need to be a compelling Constitutional issue at stake, they can just declare that the issue is "important" in some way.

In short, the court has elevated itself to the level of a supra-legislative body more akin to a politburo than a co-equal branch of government. And its all because we've acquiesced to their creation of "the Constitution as interpreted" as the successor to "the Constitution as written", and let them get away with telling us that "the Constitution means what I say it means".

Somewhere down the road, they're going to have to be reined in by the other two branches, but it doesn't look like its going to be soon. Good Luck with that one!

Posted by Rose | June 25, 2007 11:07 AM

Posted by: Lew at June 25, 2007 10:39 AM



They had Kennedy swinging over - they should have taken advantage of it while they could!

Posted by Rose | June 25, 2007 11:20 AM

Remembering that the Congress and also the Executive branches ALSO ALL are obligated to DEFER to the Constitution and STAY WITHIN THEIR OWN LEGITIMATE CONSTITUTIONAL BOUNDS.

For instance, if Congress ordered the billeting of soldiers in civilian homes, the Court would be well within its rights to toss the entire bill.

In my opinion, McCain Feingold fully qualified to be totally TOSSED on CONSTITUTIONAL grounds.

I see NO CONSTITUTIONAL AUTHORITY for CONGRESS to write bills that SLANT THE ELECTIONS CAMPAIGNS towards one party or the other, because one side is "TOO POPULAR.



VOTERS ARE - and in fact are the SOLE REPOSITORY of ALL government authority, even containing the power to dissolve any govt organ THEY SO CHOOSE and to establish new organs or types of organs to replace the dissolved ones.


Posted by Jay Reding | June 25, 2007 11:32 AM

Immolate: I'll try to give you the concise answer to that question...

There are two ways of challenging a statute on constitutional grounds: facial and as-applied. A facial challenge means that there's no way in which a statute can be constitutional -- that it has to be completely thrown out. Facial challenges are very difficult to pull off, and statutes are rarely thrown out on facial challenges.

This case was an as-applied challenge. That is a challenge that says that under the facts of the case, the statute as applied is unconstitutional. That has a narrower scope, and doesn't mean that the statute is thrown out, just that it can't be applied in a similar way.

In this instance, the relevant provision of the BCRA (Section 203) was already held to be facially valid in McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003)
-- so the Court has already said that it can be applied constitutionally, but there may be applications which aren't constitutional. Only Scalia, Thomas, and Kennedy said that the provision of the BCRA was facially unconstitutional and want to overturn McConnell.

The Court can't overturn all of the BCRA at once unless there's a case that challenges the whole thing. GIven that a party has to have standing to make a claim, that probably couldn't happen. In order for someone to have standing in a case, they have to have been injured, their injury has to be caused by the statute being challenged, and the courts have to be able to offer some remedy. (This case had a standing challenge on the third point, since the 2004 elections have already passed.) Since the BCRA is so broad, that's unlikely to happen. (Cases can be combined if they have similar issues, but that's relatively rare.)

So, the shortest answer is no, the Court couldn't declare the whole BCRA unconstitutional unless there was a case that had facts that made the entire thing unconstitutional.

Posted by Jay Reding | June 25, 2007 11:38 AM

Another point to note is that Wisconsin Right to LIfe didn't ask the Court to overturn McConnell -- they only argued for an as-applied challenge to the statute. A restrained judge is going to be less likely to decide a case on an issue outside the briefs of the parties -- and Roberts and Alito are fairly restrained judges.

What this case does is pave the way for a litigant to argue for a facial challenge which would cause that entire section of the BCRA to be declared unconstitutional, overruling McConnell. It is quite possible that now that there's been an as-applied challenge, the test the Court uses to determine whether or not the restriction is constitutional will end up forcing the Court to declare that the whole section has to go -- which is what Scalia argues in his concurrence.

Posted by Jane | June 25, 2007 11:55 AM

Roberts tends to favor narrow rulings which unlike broader rulings, Kennedy can often be persuaded to join. I think if you look back you can see that trend.

Posted by Sisyphus | June 25, 2007 1:52 PM

It should not surprise anyone that Kennedy voted for WI Right to Life in this as-applied challenge to BCRA. Kennedy is statistically the most favorable judge on the Court (excluding Roberts and Alito, who are too new to have sufficient records) to free speech claims.

Roberts and Alito were the question here, not Kennedy.

Posted by Immolate | June 25, 2007 2:01 PM

Jay... thanks for a clear explanation that is comprehensible to a layman. I'm glad that my understanding, informed by common sense, turned out to be correct in this case. I understand that common sense and the law are occasionally at odds.

Posted by Neo | June 25, 2007 4:33 PM

The scourge of scourges is that a former counsel for the ACLU thought that BCRA was constitutional. Ruth Bader Ginsburg should hold her head in shame. A traitor to the 1st Amendment which the ACLU claims to cherish so much.

Posted by KendraWilder | June 25, 2007 9:04 PM

Thankfully, Justice Roberts has keen insight, and recognizes that for years too many judges have been legislating from the bench.

Jay Reding is completely right in that the only issue that should have been adjudicated in that case were the facts relevant to the case's specific challenge.

I applaud Justice Roberts for his restraint. Change is not something that should be swept into place without thoughtful consideration, and John Roberts has the wisdom to recognize that a complete revolt would not be acceptable to the American voters.

One doesn't tear down a soundly structured house just to do necessary "upgrades" types of renovations!