“If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama’s $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama.” With Justice Sotomayor aboard, the Supreme Court holds a special session today to re-hear arguments in Citizens United v. F.E.C.
And, as Slate‘s Richard Hasen explains, the projected outcome does not look good for McCain-Feingold or advocates of campaign finance reform. “If Roberts or Alito were ready to go the narrow route again in Citizens United, however, there would have been no reason to set the case for reargument explicitly asking the parties to brief the constitutional question, and certainly no reason to rush the case to September so it can be decided before the 2010 election season goes into full swing…Expect the floodgates to open, and the money to flow freely, as early as next year.“
I missed this when it first went down, but the NYT just apprised me of it: On the verge of electoral oblivion — the retirements of Sens. Martinez, Brownback, Bond and Voinovich don’t help — the Republicans have filed two lawsuits aimed at overturning McCain-Feingold, apparently in the hope that they could then feasibly prostitute themselves back into power. (Feingold’s response.)
“In 2003, in McConnell v. F.E.C., the justices upheld the precise provisions the Republicans are now challenging…The McConnell decision should end the matter. But the R.N.C. seems to be hoping that because of changes in the court — in particular, Justice Sandra Day O’Connor’s replacement by Samuel Alito — it can persuade the court to undo this recent and important precedent.” Hmm. I’ve got a bad feeling about this.
“The court’s five most conservative members have demonstrated that for all of Justice Antonin Scalia’s talk about ‘originalism’ as a coherent constitutional doctrine, those on the judicial right regularly succumb to the temptation to legislate from the bench. They fall in line behind whatever fashions political conservatism is promoting.” In the WP, E.J. Dionne eviscerates the Scalia wing of the Roberts Court for their 5-4 decision in D.C. v. Heller yesterday. As you’ve no doubt heard by now, the decision (penned by Scalia) parsed the Second Amendment in such a way as to overturn the handgun ban in the District (and seemed to simply ignore the existing precedent of US v. Miller.) As Slate‘s Dahlia Lithwick deadpanned, “today’s decision ‘will almost certainly cause more Americans to be killed.’“
As it turns out, the Court went 0-for-2 yesterday, also deciding 5-4 (Alito writing the majority opinion) that McCain-Feingold has been prejudicial against the wealthy. In response, Sen. Feingold noted that the millionaire’s amendment was flawed anyway: “I opposed the millionaire’s amendment in its initial form and I never believed it was a core component of campaign finance reform.” Still, the decision here may not bode well for campaign finance opinions down the pike. “‘What’s most significant here is what this means for the future,’ said Rick Hasen, a professor at Loyola Law School. ‘It tells us that the long-standing limits on corporate and union campaign spending are in grave danger.’”
Sigh…According to the NYT, a new ad for John McCain by a soft-money front, Foundation for a Secure and Prosperous America, — which McCain has disavowed — exemplifies the rush of unregulated, undisclosed money expected in the 2008 race, thanks in part to the Supreme Court’s gutting of McCain-Feingold over the summer. “The decision removed virtually any restrictions on [corporations’] ability to advertise, and made nonprofit corporations, with their few disclosure requirements, the tool of choice for big donors looking to influence elections…They can now run explicitly political advertisements that mention specific candidates right up to Election Day, as long as they have some other ostensible purpose — even one that closely resembles a candidate’s campaign themes.”
“‘Conservatives got everything they could reasonably have hoped for out of the term,’ said Thomas C. Goldstein, a Washington lawyer who specializes in Supreme Court litigation.” Proving the crucial importance of the Alito-O’Connor switch (and, I’ll continue to maintain as my answer to Emily Bazelon’s line of questioning, the 2004 election), the Roberts Court flexed its muscle in depressing fashion this week, voting 5-4 (as feared) not only to gut the McCain-Feingold act in the name of “free speech” but also — seriously, no lie — to partially roll back Brown v. Board of Education. (In another well-reported case, the majority’s inordinate fear of bongs trumped this stalwart commitment to free speech.) So, if you’re keeping score, Roberts, Alito, Scalia, Thomas, and Kennedy came down like this: money good, corruption good, drug hysteria good; clean politics bad, youthful irony bad, integration bad. Oh, wonderful. Suddenly, the announcement that the Court will take a look at the Guantanamo cases doesn’t sound so appetizing. Update: Slate‘s slate of legal observers discuss.
“‘This is deja vu all over again,’ said Justice Stephen G. Breyer. ‘We’ve heard it.’” The Supreme Court hears oral arguments on McCain-Feingold…again, and word suggests the act’s fate may now be in jeopardy with Roberts and Alito on the Court. “Those justices seemed open to a Wisconsin anti-abortion group’s challenge of a provision that corporate-funded ads broadcast in the weeks before an election not mention a candidate by name.” Update: Slate‘s Dahlia Lithwick was watching too, and agrees that it doesn’t look good for McCain-Feingold, which she labels a “Dead Duck Walking.”
“‘The stakes are enormous,’ said Michael E. Toner, a Federal Election Commission member who served on President Bush’s campaign in 2000. ‘We’re watching this case very closely.’” It was upheld 5-4 in 2003…can it withstand Justice Alito? The Roberts Court declares it will take another look at McCain-Feingold in the coming session, and opponents of reform are hoping Alito will help them reopen the floodgates. “Richard L. Hasen, an election law expert at Loyola Law School in Los Angeles, said the Supreme Court challenge is ‘going to be a prime opportunity for opponents of campaign regulations to make some headway in watering down the standards.’“
By a virtual party-line vote, the House Republicans pass a campaign finance reform bill that caps “527” contributions while raising the limit on coordinated party spending — both measures that greatly advantage the GOP over the Dems in the current campaign finance climate. “Organizations such as Common Cause, Democracy 21 and Public Citizen, past legislative adversaries of the GOP, were allied with Republicans in yesterday’s floor fight. Democrats had the backing of a long list of conservative leaders opposed to regulation, including Grover Norquist of Americans for Tax Reform and Paul M. Weyrich of the Free Congress Foundation.” Well, they may have been right for the wrong reasons…still, I gotta say, the party spending aside, I’m actually with the GOP on this one. 527 organizations represent a blatant loophole in the McCain-Feingold act, and some 527 reform is clearly necessary if we’re going to be serious about restricting the influence of money on the electoral system. That so few House Dems voted for principle over their party pocketbooks is, to my mind, deeply troubling (but, so, for that matter, is McCain’s possible side deal to buttress his 2008 war chest.)
John McCain, to many the face of campaign finance reform in Washington, struggles to avoid the appearance of impropriety regarding recent donations by Cablevision to the Reform Institute, an independent group with ambiguous ties to the Senator. After his awful performance prostrating himself before Dubya in 2004, I’ve run sour on the mythical maverick — to paraphrase Progressive era Senator George Norris (R-NB) speaking of his colleague William Borah (R-ID), McCain “shoots until he sees the whites of their eyes.” But, still, he’s campaign finance reform’s biggest blue chip, and he should know better than to endanger the cause with this type of shadiness…particularly with anti-reform forces gunning for him. What would be plausible deniability for anyone else seems rather implausible coming from McCain, given his place at the head of the movement.