Under the U.S. Supreme Court: The incredible shrinking McCain-Feingold act

Sen. John McCain, R-AZ, speaks with a reporter after a cloture vote on the financial reform bill on Capitol Hill in Washington on July 15, 2010. The vote passed which allows a final vote on passage of the bill later today. UPI/Roger L. Wollenberg
1 of 2 | Sen. John McCain, R-AZ, speaks with a reporter after a cloture vote on the financial reform bill on Capitol Hill in Washington on July 15, 2010. The vote passed which allows a final vote on passage of the bill later today. UPI/Roger L. Wollenberg | License Photo

WASHINGTON, Jan. 2 (UPI) -- If the Republican National Committee has its way, the already battered McCain-Feingold law will be stripped of one of its last remaining bastions, reducing the once powerful engine restraining the unbridled use of political contributions to a squeaky nub.

If you see political expenditures as a form of speech, this would be a good thing. If you see huge expenditures of money as a corrupting influence in American politics, then it would not be.


The 2002 Bipartisan Campaign Reform Act, better known as McCain-Feingold, took a terrific hit last year when the U.S. Supreme Court ruled 5-4 to remove restrictions on corporate and union funding of independent political broadcasts, citing the free speech guarantee of the First Amendment.

President Barack Obama even lectured the justices on the ruling's consequences during his State of the Union address, saying it "gives the special interests and their lobbyists even more power in Washington while undermining the influence of average Americans." During a later weekly radio address, the president said the ruling "strikes at our democracy itself."


"This ruling opens the floodgates for an unlimited amount of special interest money into our democracy," he said. "It gives the special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way, or to punish those who don't."

After the Citizens United ruling, the Center for Competitive Politics, an Alexandria, Va., a non-profit dedicated to a "more free and competitive electoral process," noted a challenge to the use of "soft" money by political parties would target "virtually the only remaining plank of McCain-Feingold that hasn't been ruled unconstitutional."

Interestingly, there has been little serious analysis of the effect of Citizens United on the 2010 midterm elections though that may change with 2012 as the cumulative effect becomes more apparent.

Efforts to further curb McCain-Feingold suffered a serious setback in late June when the U.S. Supreme Court refused to hear Republican National Committee vs. Federal Elections Commission. In that case, a federal appeals court ruling upheld the law's limits on political party contributions for activities not connected to federal elections.

Still, three members of the court -- Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas -- indicated they wanted to hear the challenge. Close but no cigar. It takes a vote of four of the nine justices to accept a case.


Moreover, the larger issue isn't dead.

On Dec. 10, the RNC asked the Supreme Court to hear a challenge to McCain-Feingold's limit on the amount of money political parties can spend in coordination with candidates. McCain-Feingold does not allow a party to spend more than $5,000 to help the campaign of one its nominees, unless the party spending is completely uncoordinated with the nominee's campaign.

In a statement announcing the filing, RNC Chairman Michael Steele said: "This case goes to the core of the First Amendment. The right of political parties to express their members' views about their candidates for office while also working directly with those candidates to help elect them is crucial to a healthy democracy. Encroachments on this right are unconstitutional, and we are asking the Supreme Court to recognize that."

The challenge initially was filed before the 2008 election on behalf of the RNC itself and U.S. Rep. Joseph Cao, R-La. Cao won in 2008 but was defeated for re-election in November.

The 5th U.S. Circuit Court of Appeals, headquartered in New Orleans and one of the most conservative circuits in the country -- if not the most conservative -- upheld the law's provision 11-5 in September, noting since 1976's Buckley vs. Valeo, the Supreme Court has "determined that some governmental intrusions on an individual's (or political party's) First Amendment right to make financial contributions to a candidate's campaign were warranted based on the government's compelling interest to prevent corruption in the election of federal officials."


The key word is "contributions."

In Cao the RNC argues the limit is unconstitutional and party help for an individual campaign is an "expenditure" as opposed to a "contribution."

In its petition to the Supreme Court, the RNC contended, "This case presents a question that this (Supreme Court) has expressly reserved (in prior rulings): whether a political party's 'expenditures' that contain a party's 'own speech' may be treated as 'contributions' if they are coordinated with the party's candidate. If treated as contributions, they are subject to limits diminishing the amount of coordinated 'own speech' possible. Under this court's fundamental First Amendment distinction between 'contributions' and 'expenditures' (citing Buckley) an expenditure for a communication containing a party's own speech should not be subject to treatment and limitation as a contribution even if coordinated.

"If that is so, the next question is where the line is to be drawn in a test defining a party's 'own speech.'"

The petition argues "that 'independent expenditures,' which are the only currently available avenue for a political party's unlimited 'own speech,' do not adequately protect a party's First Amendment right to engage in its own core political speech. And recent judicial decisions" -- an indirect reference to Citizens United -- "leave political parties -- traditionally favored -- at a disadvantage relative to corporations, unions, trade associations, special interest groups and political action committees ... in their ability to engage in independent expenditures."


The petition contends the high court should hear the case so that the justices "may answer the unresolved question and provide a test for determining when a coordinated political party expenditure constitutes the party's 'own speech,' thereby reducing somewhat the disadvantage that political parties now face."

The petition later gets downright political, saying the RNC wanted to but because of the limit couldn't broadcast the following ad:

"The Republican National Committee has long stood for certain core principles, which we believe are the fundamentals of good government. When it comes to the issues of lower taxes, individual freedoms and a strong national defense, we need leaders who will stand with the American people and defend those issues. We need leaders who understand that our economy is in a recession, our individual freedoms are constantly under attack and we continue to fight the global war on terrorism to keep our families safe.

"Joseph Cao understands and fights for those issues," it adds. "And, that is why we ask you to join us in supporting him on Dec. 6 (for a runoff). It's important for Louisiana and important for the country."

The Supreme Court may decide within the next couple of months whether it wants to take the case.


Meanwhile, the authors of the federal election law that bears their names have made news of their own. MSNBC reported Dec. 21 Sen. John McCain, R-Ariz., has taken an angry turn to the right, still burning because of his defeat in the 2008 presidential race and voting against legislation he once sponsored. Sen. Russ Feingold, D-Wis., after nearly two decades in the Senate, was defeated for re-election in November, finally too liberal even for Wisconsin.

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