SCOTUS Knocks Down McCain-Feingold


January 21, 2010 10:45 AM

SCOTUS Knocks Down McCain-Feingold
By Daniel Foster

Updated: 11:18 A.M. 

The Supreme Court today struck down key elements of McCain-Feingold legislation in a decision that could radically alter campaign finance.

In a broad 5-4 decision in Citizens United vs. FEC, the Court found unconstitutional provisions in the Bipartisan Campaign Reform Act that prevented corporate and labor union money from funding some kinds of political communication. Under the ruling these groups may now fund political advertisements out of their general treasuries.

The decision overturns Austin vs. Michigan Chamber of Commerce and part of McConnell vs. FEC, which separated individual and collective campaign contributions into two legal classes and restricted the latter. But it upholds restrictions on direct contributions by corporate bodies to candidates, as well as requirements that the funding sources of political advertisements be disclosed to the public.

The case does not affect political action committees (PACs), which pool voluntary donations from individuals for direct contributions to candidates.

Justice Anthony Kennedy wrote for the majority and was joined by Chief Justice John Roberts, and Associate Justices Samuel Alito, Antonin Scalia, and Clarence Tohmas. Associate Justice John Paul Stevens wrote for the dissent.

The majority saw the Austin and McConnell cases as significant departures from “ancient” First Amendment case law, compelling them to overturn the more recent precedents.

“We…hold that stare decisis does not compel the continued acceptance of Austin. The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether,” Kennedy says in his decision.

In his dissent, Justice Stevens warned that “The court’s ruling threatens to undermine the integrity of elected institutions around the nation.”

When the case was first heard last march, at issue was whether campaign finance laws that cap corporate spending on political activities applied to Hillary: The Movie, a scathing documentary about Hillary Clinton financed by a non-profit group.

But the case was given an unusual re-hearing, with new players in the form of Justice Sonia Sotomayor and Obama Solicitor General Elena Kagan, and this time it focused on the much broader question of whether corporate spending limits were themselves constitutional.

In an unconventional line of argument, Kagan seemed prepared to grant that non-profits like Citizens United, which produced the critical Clinton documentary, were not subject to the restrictions of 2002’s McCain-Feingold bill, so long as restrictions for for-profit corporations remained in place.

In response to the suggestion by Chief Justice John Roberts as to whether she — and by extension the government — had decided to strategically “give up” the particulars of the case to preserve the broader impact of McCain-Feingold, Kagan responded:

“If you are asking me, Mr. Chief Justice, as to whether the government has a position as to the way it loses, if it has to lose, the answer is yes.”

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