Is McCain-Feingold Headed the Way of the Dodo?

[WSJ_law_blog]

Let’s take care of some unfinished business this morning, and revisit just one of the half-dozen or so interesting things to happen at the Supreme Court on Monday, the last day of the 2008-2009 term. First, click here and here for the letters read aloud on Monday by Chief Justice Roberts and David Souter concerning Justices Souter’s retirement. (The Robert Frost allusions are a nice touch, wethinks.)

When the smoke lifted yesterday, some commentators seem to think that one of the biggest decisions was not, in a strict sense, a decision at all: the court’s decision to rehear the Citizens United case in the late summer.

Narrowly construed, the case involves whether a documentary made by Citizens United, a conservative group about Hillary Rodham Clinton, violates the McCain-Feingold campaign-finance law. The film, made during the runup to the 2008 presidential election, aired in some theaters, but not widely, due to an adverse ruling from the FCC.

But rather than rule on that rather narrow question, the court asked the parties to argue a much broader question: whether recent precedents upholding restrictions of corporate spending on political advertisements should be overruled. In the pronouncement, the court hinted at a willingness to overrule much of the existing law on campaign finance. Click here and here for the WSJ and NYT’s take, respectively. For more, check out Rick Hasen’s comprehensive coverage over at the Election Law blog.

“The court is poised to reverse longstanding precedents concerning the rights of corporations to participate in politics,” said Nathaniel Persily, a law professor at Columbia, to the NYT.

According to the NYT, the court has increasingly shown a willingness to shoot down campaign-finance laws on First Amendment grounds. Indeed, the Roberts court has struck down every campaign finance regulation to reach it, and it seems to have on board even more justices prepared to do more. Indeed, last year, in Federal Election Commission v. Davis, Justice Alito, writing for the majority, said leveling the electoral playing field was not a matter for the courts or constitutional.