McCain-Feingold revisited?

Today the U.S. Supreme Court heard argument in a Vermont case, Randall v. Sorrell, involving a challenge to that state’s highly restrictive campaign finance regulation. The Vermont law in controversy severely limits political campaign contributions and expenditures, and is viewed by some as an incumbency protection scheme. This statute was upheld on appeal to the Second Circuit Court of Appeals in 2004 by a 2-1 majority. The two judges voting in the majority were appointed by President Clinton.

Modern campaign finance legislation began with the Federal Election Campaign Act of 1971, which required disclosure of campaign contributions. In 1974, the Act was amended to set limits for both political contributions and expenditures in federal political campaigns and also established the Federal Election Commission.

Limitations on contributions and expenditures were considered by some to be infringements on free speech and the 1974 Act was challenged in court. In 1976, the Supreme Court in Buckley v. Valeo upheld campaign contribution limits but ruled that limits on expenditures were an unconstitutional infringement on free speech.

Fast forward to 2002, where new campaign finance legislation in the form of the Bipartisan Campaign Reform Act (McCain-Feingold) was passed by Congress and signed by the President. This Act limited the use of “soft money” (defined as funds used for non-campaign purposes but intended to influence elections) by political parties.

McCain-Feingold was challenged and in 2003 the Supreme Court in McConnell v. FEC upheld the Act by a 5-4 majority, with Justices Breyer, Stevens, O'Connor, Souter, and Ginsburg voting to uphold. O’Connor wrote the majority opinion.

In the 2004 presidential election, the weakness of McCain-Feingold was exposed. Massive amounts of money were diverted from political parties to new “527” committees. MoveOn.org, the Media Fund, America Coming Together, and other 527 committees, mostly from the political left and financed by wealthy individuals like George Soros, were unregulated by McCain-Feingold and spent millions of dollars in an effort to influence the presidential election.

Now comes this Vermont case, with two Clinton-appointed judges upholding new restrictions on campaign expenditures, while 527 committees remain unregulated.

But now throw into the mix the fact that Justice O’Connor has retired. Justice Alito now sits on the bench in her place.

Although the decision in Randall v. Sorrell won’t be published until May or June, perhaps this case will result in a new majority that supports free speech in campaigns and thereby lessens the role 527 committees in the federal election process.

I’m optimistic. Here's another account of the court proceedings today. And another.