January 20, 2007


High Court To Revisit Campaign Finance Law: New Lineup on Bench Will Consider Ad Limits (Robert Barnes and Matthew Mosk, January 20, 2007, Washington Post)

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 Since then, Justice Sandra Day O'Connor, who was in the majority, has been replaced by Justice Samuel A. Alito Jr. [...]

U.S. District Judge Richard J. Leon, joined by U.S. Court of Appeals Judge David B. Sentelle, said the proper way to evaluate the ads was to look simply at what they said. They found that the ads neither endorsed nor opposed Feingold, did not mention his upcoming election and did not tell listeners whether the senator had been a part of the filibuster. They agreed with the antiabortion group's contention that the ads were "textbook" examples of issue ads.

But dissenting District Judge Richard W. Roberts said courts must view the ads in context. In this case, Wisconsin Right to Life was a longtime opponent of Feingold and had made his defeat one of its priorities. Although the language in the ad was neutral, it referred listeners to a Web site that contained highly critical reviews of the senator.

And Roberts said there could be credence to the defendants' argument that the ads were a "sham" designed to test McCain-Feingold rather than to argue for a point of view. There were no filibusters at the time that the group wanted to run the ads, and the group could have paid for them through a political action committee, upon which the restrictions would not apply.

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."

He said the decision by the two-member majority of the lower court that context should not be considered in evaluating the ads is "opposite what the majority of the Supreme Court found" when upholding McCain-Feingold three years ago.

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

Justice Alito is a safe enough vote, but here's where Justice Kennedy could go wobbly.

Posted by Orrin Judd at January 20, 2007 9:16 AM

McFein prohibits political speech. The nonsense about a candidate's name, or what group is running what is enough to drive one insane.

The 1st Amendment prohibits that part of the bill on its face, and 5 justices voted for it.

If the colonists were right to fight the British....well, you know.

This nation is in sore need of a new Declaration of Independence.

Posted by: Bruno at January 20, 2007 10:23 AM

McCain-Feingold simply defined political speech as "corruption."

The new "corruption" consisted of informing and adving other voters. The idea was that legislators were being led around by the nose by the--voters. Outrageous!

I might add that the "context" argument is a doctrinal monstrousity. This is a Marxist conception of "law," whereby the rule is not of general application, but is tailored to the "class" to be impacted.

Posted by: Lou Gots at January 20, 2007 11:45 AM

It mostly is corrupt, but the Constitution protects it.

Posted by: oj at January 20, 2007 2:32 PM

We are reading that communication, the essence of politics is corrupt. This can only mean that the absence of corruption is to shrink back and to do what ever the king might ordain.

None of should be suprised by this, as it conforms with the notion that rights are a grace of the state.

Posted by: Lou Gots at January 20, 2007 3:31 PM

The communication is simply part of the influence selling and buying.

Posted by: oj at January 20, 2007 6:17 PM