Is McCain-Feingold In Trouble ?

Today, the Supreme Court heard arguments in two cases out of Wisconsin which pose a direct challenge to some of the most egregious parts of the McCain-Feingold campaign finance law. Specifically, the cases challenge those provisions in the law which prohibit third parties from running advertisements within 60 days of a general election which specifically mention a candidate.

Based on initial reports of the argument, it seems as though there is a possibility that McCain-Feingold, which the Supreme Court upheld only three years ago, could be in serious jeopardy:

WASHINGTON — A majority of the Supreme Court appears to be skeptical of the landmark McCain-Feingold campaign finance law’s restrictions on pre-election issue ads that mention a candidate by name.

The law prohibits interest groups from running corporate-funded radio and TV ads that mention a candidate’s name within 30 days of a primary or 60 days of a general election.

In arguments defending the law Wednesday, attorney Seth Waxman said that advocacy groups could still run the ads as long as they are financed with funds from political groups that comply with federal limits and disclosure requirements.

“What do you make of the fact that so many advocacy groups say that’s impractical?” asked Justice Samuel Alito, whose vote could be pivotal because he took the place of Sandra Day O’Connor. She was one of five justices to uphold large portions of the campaign finance law in 2003.

Waxman responded by pointing out that one of those groups, the ACLU, never mentions a specific candidate by name and therefore hasn’t been affected by the restriction.

But Chief Justice John Roberts, who has also joined the court since the 2003 ruling, wasn’t moved by that.

“Just because the ACLU doesn’t do that doesn’t seem particularly pertinent to me,” he said.

Lyle Denniston at SCOTUSBlog attended the argument and makes these observations:

With Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia leading an aggressive assault on a key provision of federal campaign finance law, Congress’ latest attempt to reduce the flow of corporate and union money into federal politics appeared to be in trouble in the Supreme Court on Wednesday. While that attempt had an energetic defense from Justices Stephen G. Breyer and David H. Souter, it seemed apparent at the end of an hour of argument that the “blackout” period for “electioneering” ads on radio and TV — if it survived at all — would have far less effect in restraining such ads.


The main thrust of the Roberts-Scalia assault during the arguments on FEC v. Wisconsin Right to Life (06-969) and Sen. John McCain, et al., v. Wisconsin Right to Life (06-970) was that the “electioneering communications” restrictions adopted by Congress in 2002 do not appear to leave enough room for an advocacy group to put up broadcast ads during election season that seek to raise questions about the policy stance of candidates without directly urging voters to vote for or against such candidates. Just last Term, the Court had ruled, in a post-McConnell decision in this same Wisconsin Right to Life dispute, that “as-applied” challenges could still be made to the “blackout” clauses in the Bipartisan Campaign Reform Act of 2002.

A more lengthy pre-argument analysis of the case and the issue behind it can be found here.

The internal politics of the Court are murky, and it’s unclear if there are enough votes to completely reverse the Supreme Court’s 2004 decision upholding the law, but it seems clear that one of the more blatantly unconstitutional aspects of McCain-Feingold is in serious jeopardy of being significantly restricted in it’s application at the very least.