Today is the fifteenth anniversary of the U.S. Supreme Court’s decision in McConnell v. Federal Election Commission, a case that points to a future that could have been.
The case was born out of the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold after its two Senate sponsors, John McCain (R-Ariz.) and Russ Feingold (D-Wisc.). Working together for a seven-year period against considerable opposition from interest groups, these two senators and their House counterparts, Reps. Chris Shays (R-Conn.) and Marty Meehan (D-Mass.), fought to update the federal campaign finance law, which had barely been updated since 1974, to reflect new realities. The law was far from a perfect solution, as it was hamstrung not only by the politics of the day but also by the Supreme Court’s 1976 precedent Buckley v. Valeo, but still, it was the most meaningful federal reform in a generation.
In the House, a bipartisan majority voted the bill in over the objections of the speaker; in the Senate, it overcame a filibuster with 60 votes. President Bush signed it into law in 2002. Shortly afterwards, a motley crew of special interests and opponents of reform, ranging from the California Democratic Party to Sen. Mitch McConnell (R-Ky.), challenged it in court as unconstitutional. They claimed that it was unconstitutional.
And then something happened that, by today’s standards, would be remarkable: the U.S. Supreme Court upheld almost all of it. The case did not produce a single majority opinion covering all the issues, so it is complex to read, but overall, a coalition of justices appointed by different presidents from both parties upheld nearly all of the challenged provisions of the law. The Court broke no new ground; for example, it adhered to Buckley‘s insistence that campaign finance laws could only be justified on the basis of “corruption” rather than, for example, the principle of political equality. But the Court found that the particular reforms in the McCain-Feingold law were, in fact, justified as protecting against corruption or the appearance of corruption.
Fifteen years later
McConnell is in many ways a symbol of a lost future. After a change in composition of the Court, in 2010 (just seven years after the decision), the Court’s infamous Citizens United v. FEC decision overruled key parts of McConnell. The 2014 McCutcheon v. FEC was a further retrenchment. Some parts of McConnell survive, but its key principles no longer enjoy majority support on the Court.
To be clear, the McCain-Feingold bill was no panacea; it solved some very specific problems of the 1990s, while not even attempting to address broader political inequalities. But a Supreme Court jurisprudence that built precedent from the McConnell decision would have been better than one that tore it down with Citizens United.
How do we move forward? First, there are many “low-hanging fruit” reforms, such as public financing of elections, that can be pursued without running afoul even of the Supreme Court’s current cramped jurisprudence. Second, we can pursue innovative litigation and legislation designed to cut back on Citizens United and its progeny in specific areas where there is still room for progress at the Supreme Court, such as fighting super PACs and foreign money (whether directly or “laundered” through corporate political spending). And third, we can work to pass a constitutional amendment to go further than even McConnell did, and overturn not just Citizens United but Buckley as well, and work towards the promise of political equality for all.