High Court Takes ‘Unusual Step’ to Re-Hear Challenge to McCain-Feingold Campaign Finance Law

June 30, 2009 - 11:05 AM
The U.S. Supreme Court, which should have ended its term Monday, refused to issue a ruling in an important case and ordered the parties involved to re-argue it at a special hearing set for September.
(CNSNews.com) – A constitutional attorney who won a victory at the U.S. Supreme Court three years ago over some restrictions on "electioneering communications" in the Bipartisan Campaign Reform Act of 2002, says a unique move by the Court on Monday shows the justices may be ready to strike down the restrictions entirely. 

Attorney James Bopp said the Court, which should have ended its term Monday, took the unusual step of refusing to issue a ruling in a case – Citizens United v. Federal Election Commission -- and ordered the parties involved to re-argue it at a special hearing set for September.
Normally, the nine justices would have issued their final opinions Monday to close out their term before taking the summer off.

Instead they announced that they had decided not to rule whether the law's ban on broadcast TV and radio ads 60 days before a general election actually applied to a 90-minute film in 2008 critical of then-Democratic New York Sen. Hillary Clinton.

Chief Justice John Roberts ordered the case to be put back on the docket – and ordered the parties to make further arguments in addition to whether Citizens United, a conservative not-for-profit organization, had the right to air the film in Democratic primary states and on pay-per-view to cable subscribers without complying with federal campaign-finance law.
Bopp, who successfully challenged provisions of the campaign-finance law in his own 2006 case, Wisconsin Right to Life v. Federal Election Commission, said the justices actually widened the issue they would consider -- an almost unprecedented move.
The issue the Court will now decide is whether corporations can be prohibited generally from participating in political campaigns, Bopp told CNSNews.com.
“That was (the result of) a ruling in the mid-80s in a case called Austin vs. Michigan Chamber of Commerce, where the Supreme Court held that corporations pose a peculiar threat of corruption just by participating in political campaigns, and therefore could be prohibited,” Bopp said.
The court specifically asked attorneys to provide arguments about whether the Supreme Court “got it wrong in 2003,” when they upheld the electioneering communications provision of the law in its decision in McConnell v. Federal Election Commission. 

“I think maybe the Court thinks that they need to consider that that might be true – that they got it wrong -- and therefore they need to strike down the whole provision,” he added. 

The 2003 McConnell case, named for then-Senate Minority Whip Mitch McConnell, challenged the constitutionality of the campaign-finance law, which is popularly known as “McCain-Feingold” after its sponsors, Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.).
McCain-Feingold, which was passed in 2002, regulates who, how much and when contributions may be made to political candidates.
An important aspect of McCain-Feingold also bars organizations from sponsoring television and radio ads about candidates for office within 30 days of a primary or 60 days of when a general election is held.
But in Bopp’s own challenge in 2006, the justices ruled that the law did not always apply to grassroots organizations merely trying to communicate with their own constituents about candidates.
Now, he said, the Court must decide two issues -- if, under McCain-Feingold, the conservative group had a right to place the 90-minute film biography of Clinton on cable TV, and whether it is constitutional to stop political speech by a corporation.

The hearing is set for Sept. 9. Because the hearing is actually the continuation of the previous term -- and not set for the new fall term, which starts in October, it is unclear whether a newly appointed Supreme Court justice, even if confirmed in time by the Senate, would be allowed to sit in on this case.

Confirmation hearings for Judge Sonia Sotomayor, President Obama's nominee to replace the retiring Justice David Souter, begin July 13.