Court Strikes Down Key McCain-Feingold Provision

A three judge panel yesterday struck down McCain-Feingold’s restrictions on issue advocacy ads.

A divided three-judge court ruled yesterday that ads advocating for an issue and mentioning candidates can run during an election, creating a loophole in the law that sought to control the power of big money in elections. In a 2 to 1 ruling, the court found that the government had no compelling justification to regulate television ads such as the ones Wisconsin Right to Life Inc. broadcast in July 2004, which advocated stopping congressional filibusters against President Bush’s judicial nominees.

The ads ran when Sen. Russell Feingold (D-Wis.) was running for reelection and had opposed some of Bush’s nominees. The ads made no mention of Feingold’s record, instead urging Wisconsin residents to call their senators to express their dissatisfaction.

U.S. District Judge Richard J. Leon, joined by U.S. Court of Appeals Judge David B. Sentelle, agreed with Wisconsin Right to Life that ads such as theirs merely advocate a position without trying to criticize the record of a particular candidate. The ads are not targeted “electioneering communications” and should not be burdened by the reporting requirements of the federal campaign finance law, Leon wrote.


FEC Commissioner David M. Mason said in an interview that the six-member commission has not decided whether to appeal the ruling to the Supreme Court, but he cautioned about predicting what campaign finance limits will govern in the 2008 presidential elections. A similar case involving a Maine group is still to be decided, and the Supreme Court could have a different view. “It’s very unlikely this ruling will affect what the law will be a year from now,” Mason said.

The AP report, though, says “the case automatically heads to the Supreme Court for review.”

Rick Hasen provides an excellent backgrounder. He believes that the replacement of Sandra Day O’Connor on the Supreme Court with Samuel Alito makes it likely that this ruling is upheld and that the “move toward a deregulated campaign finance system continues.”

SCOTUSBlog’s Gretchen Sund provides links to more press coverage, analysis, and documents.

Ed Morrissey provides an interesting lay analysis. A key ‘graph:

It’s not for nothing that many have termed the BCRA the Incumbent Protection Act. The restriction on political speech that keeps groups from buying advertising that names politicians violates the fundamental reason for the First Amendment — to allow Americans to criticize their elected officials. While the court did not recognize the entire egregiousness of this BCRA provision, it did recognize that the idea of never being able to name elected officials in advertising within 60 days of an election regardless of the nature of the reference is a ludicrous standard.

Bill Hobbs terms it “A Half-Victory for Freedom of Speech,” observing that, “The court should have ruled that any restrictions on what any individual or group could say in a campaign ad was anathema to the basic founding principles of America.”

While I agree that the plain language of the First Amendment would lead to that conclusion, lower courts are traditionally bound to defer to the rulings of higher courts (stare decisis) and to defer to both Congress and expert regulation commission such as the FEC. Given that the Supreme Court has recently ruled against the First Amendment Purist objections to BCRA, this panel was constrained to rule in accordance with that precedent. My hope is that Hasen is right with respect to Alito’s presence on the Court.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.