McCain-Feingold revisited?

Tuesday, February 28, 2006
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., 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.


Knucklehead said...


From your "optimistic" link:

the worst time was had by Vermont's state attorney general, William B. Sorrell. He is the chief legal officer of a state with a reputation for bucolic innocence and Yankee integrity, but he sought with considerable enthusiasm -- and little success -- to portray Vermont as suffused with dirty money buying influence with state legislators and other officeholders. With more than a little skepticism in his voice, Chief Justice John G. Roberts, Jr., asked Sorrell very early: "How many prosecutions have you had for political corruption in Vermont?" (None, was the answer.) And then: "Is political corruption a problem in Vermont?" (70 percent of the citizens think so.) And then: "Would you describe your state as clean or corrupt?" (No one has gone to jail, but "the threat of corruption in Vermont is far from illusory.")

Money and the corruption it brings to politics are a huge problem for VT, argues the VT AG. "How many prosecutions?" asks the Chief Justice. Well, none. But 70% of people in VT think it is a problem.

Well, dangit, if it is a problem, and the problem is corruption, maybe you ought to go investigating and prosecuting some corrupt folks there, Mr. AG, rather that trying to control every freakin' body.

Gosh how I detest these save the world from itself nutballs. This bozo is in front of the SCOTUS 'cause some freakin' poll says there's a problem. He doesn't answer, "Our courts are clogged with umptyump prosecutions each year" but, "the people think there's a problem." The lunatics are running the asylum.

Rick Ballard said...

I read this thoroughly (for me) and I'm still at a loss as to how it gets to the 527 issue. I was pleased to see Justice Roberts' sharp questioning and pleasantly surprised at Justice Breyer's apparent position but where is the 527 hook?

When Feingold rolled McCain with that pernicious legislation, 527s and 501(3)(c)s were on board in droves - which is why the bill was such garbage to begin with. How does this decision (should it be returned as expected) begin the process of rooting out the 527s?

Knucklehead said...


This doesn't seem to have anything to do with 527s. If anything I suspect it will be the highwater mark in the Incumbent Protection flood. There's not much in that to be thrilled about other than that before the water can drain away it has to stop rising.

CF said...

How,indeed? Maybe the good sense fairy will fly into chambers and whisper in the judges' ears that it is past time to suggest error in the McConnell ruling.
(Oh, and my chance, did that 70% poll come from another Pell Foundation shell game?)

brylun said...


It doesn't directly relate to the 527 money, but by restricting political committees and candidates, current law leaves the playing field fully open for unregulated 527s.

Free contributions and expenditures from restrictions and let the electorate decide for themselves and 527s will have less influence, in my opinion.

People always underestimate the intelligence of the voters. That's a mistake.

David Thomson said...

Alito should make the difference. McCain-Feingold will likely be overturned. What were the so-called logical reasons why the liberal members voted in favor of that earlier decision? There weren’t any! Rational thought per se had virtually nothing to do with it. These individuals instinctively sensed that this legal travesty would advance the leftist agenda.

brylun said...

Let me put it another way. Before McCain-Feingold, no one ever heard of 527s, and they did not play a significant role in American politics.

But after the adoption of M-F, soft money could no longer flow to political parties and candidates, so it went to 527s.

If 527s are outlawed, in my opinion, the money will just flow in some other fashion. Americans are creative.

So the best way to deal with 527s is not by outlawing them in a "McCain-Feingold-like" statute, but to get out of the business of limits altogether, and just leave the reporting requirements in place.

The resulting free-for-all will lessen the influence of 527s, I think. And the voters are smart enough to sort it all out.

David Thomson said...

“People always underestimate the intelligence of the voters. That's a mistake.”

Actual voters are all that really matter. Polling of the general public is next to worthless. 2006 is a political off-year. Few people care enough to vote in November. The Republicans will probably do better in turning out their base.

Rick Ballard said...


Sorry to have been slow on the uptake. I agree with the premise as you stated it in your second comment completely.

It would be nice if Congress would amend the McCain-Feingold Suppression of Speech Act and turn it into the Immediate Electronic Reporting Act - which would tell me all I really care to know about contributions. How much, who to and upon deposit - not too much to ask.

Syl said...

Just in case a lefty drops by to read this, you might add the SBVT who also worked a successful 527.

And how.

I do think it is significant that though the Reps won the 527 war during the 2004 election, we still are against them.

Well, I'm not actually against them. It's just that I'm against the M-F restrictions that gave the 527's such importance. I actually think that anyone with an idea, or position, should have the right to organize and get their message out.

Kathleen Callon said...

If you want Russ to run in 2008, please, come on over and sign the new petition at Thanks for your time.