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Time Running Out For High Court to Hear McCain-Feingold

It has been nearly two months since a special three-judge court in Washington, D.C., heard oral arguments on the constitutionality of the Bipartisan Campaign Reform Act, otherwise known as the McCain-Feingold law, for its two Senate sponsors. Former solicitors general on both sides of the case informed the three judges at oral arguments that for the Supreme Court to hear the case this term, the judges needed to issue their opinion by the end of January. January has passed without an opinion, and the delay may prejudice the case for the law’s constitutionality.

The law itself is quite controversial. Its supporters claim the law closes loopholes that have allowed corporations and unions to make unlimited “soft money” campaign contributions and “issue advocacy” expenditures. Opponents claim the law violates the rights of speech and association guaranteed by the First Amendment.

Whatever the three judges decide — and the betting is that at least two of the more conservative judges on the panel will strike down parts of the law — the case will be appealed directly to the Supreme Court, where the justices will not defer to any legal conclusions reached by the lower panel. In the past two major Supreme Court campaign finance decisions, the Supreme Court reversed the 8th Circuit (in the Shrink Missouri case) and then the 10th Circuit (in the Colorado Republican case) to uphold challenged campaign finance laws.

At the Supreme Court, as well as in life, timing may be everything. Time is running out for the Supreme Court to hear arguments this term. The calendar already is officially full, with the last arguments set for April. The case is extremely complex. Rumors continue to circulate in Washington that Chief Justice William Rehnquist and Justice Sandra Day O’Connor may retire at the end of this term. The rumors about Rehnquist intensified when he fell last December and suffered a painful knee injury. If Rehnquist and O’Connor retire before the Supreme Court decides the challenge to McCain- Feingold, not only that law, but most campaign finance laws, are in serious jeopardy.

One might think that the retirement of two conservative justices would not make much difference in the balance on the court, given the likelihood that President Bush would appoint two new conservatives. That may be true in certain areas, but it is not true in campaign finance cases.

Rehnquist has been one of the most reliable votes supporting campaign finance regulation since the Supreme Court decided the important 1976 campaign finance case of Buckley v. Valeo. Indeed, Rehnquist has sometimes been alone in stating his strongly held belief that it is constitutional to place just about any restriction on corporate involvement in the political process. O’Connor has been a somewhat less reliable vote (she split with Rehnquist back in 1990 on whether a state may prohibit corporations from making independent campaign expenditures), but she has still voted to uphold much campaign finance regulation.

Bush has said that he would appoint justices to the Supreme Court in the mold of Justices Antonin Scalia and Clarence Thomas. Thomas has been outspoken in dissenting opinions that Buckley v. Valeo should be overruled, making unconstitutional most campaign finance regulation (except perhaps some disclosure rules). Scalia has begun signing on to Thomas’ dissents in these cases. Justice Anthony Kennedy also has expressed serious skepticism about whether campaign finance regulation may ever be consistent with the First Amendment. Two new justices whom the president may appoint could join with Kennedy, Scalia and Thomas in creating an essentially unregulated campaign finance regime. That would doom not just McCain-Feingold, but also laws such as California’s imposing contribution limits in state campaigns.

Ironically, some liberals are hoping that Rehnquist can hang on a little longer to preserve the ability of states to provide for meaningful campaign finance regulation.

Richard L. Hasen is a professor at Loyola Law School in Los Angeles, specializing in election law.

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