Man Without Qualities


Friday, January 19, 2007


McCain-Feingold, Dead By Independence Day?

The Supreme Court today agreed to review McCain-Feingold to "see" if it violates the free speech rights of advocacy groups by prohibiting them from running ads mentioning specific candidates before an election. Of course, this is pretty similar to the Supreme Court granting review of a law to "see" if it violates the free speech rights of advocacy groups by, say, allowing the government to keep the members of the group bound and gagged for the sixty days before an election. The answer is obvious, but only if one actually cares about the First Amendment. The Washington Post reports:
The Supreme Court three years ago upheld the constitutionality of McCain-Feingold, which was enacted to reduce the influence of campaign spending by wealthy individuals, corporations, unions and special interest groups. But Justice Sandra Day O'Connor, who was part of the 5-4 majority that issued a complicated, nearly 300-page ruling, has retired. She has been replaced by Justice Samuel A. Alito Jr. After O'Connor's departure, the court last year told the lower court to take another look at Wisconsin Right to Life's petition.
When the Court - any court - hands down a complicated 300 page split opinion, you know its got to be wrong, and they know it, too. One doesn't have to be a veteran Court watcher to figure out that the old-4-vote-minority-plus-Alito is eyeing that opinion foolishly upholding McCain-Feingold with approximately as a highway partol officer eyes a red Porsche doing a ton-and-twenty-five that got away from him the week before.

Done by July. With lots of summertime left to reach right up and touch the sky!

UPDATE: The usually clueless Linda Greenhouse weighs in true to form, grossly underplaying the error made by those (including the FEC and Ms. Greenhouse) who "had regarded the constitutionality of the provision as settled." In fact, the Court made clear in a later unanimous opinion that it had merely upheld the statute "on its face" (as Ms. Greenhouse notes but without commenting on the Court's astonished tone). Even upholding McCain-Feingold on its face was technically already serious Court error, as indicated by Justice O'Connor's tortured opinion. But that error was almost nothing in substance and practice, especially given Justice O'Connor's intensely fact-and-application-based opinion. Look for the Court to either reverse itself and declare McCain-Feingold flatly unconstitutional on its face, or (more likely) to overturn its old decision sub silentio by holding that the statute is unconstitutional in virtually all applications - especially where the statute's advocates most want it to apply!

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