The McCain-Feingold law abridging freedom of political speech -- it restricts the quantity, timing and content of such speech -- included a provision, the Millionaires' Amendment, that mocked the law's veneer of disinterested moralizing about "corruption." The provision unmasked the law's constitutional recklessness and its primary purpose, which is protection of incumbents.
The amendment, written to punish wealthy, self-financing candidates, said that when such a candidate exceeds a particular spending threshold, his opponent can receive triple the per-election limit of $2,300 from each donor -- the limit above which the threat of corruption supposedly occurs. And the provision conferred other substantial benefits on opponents of self-financing candidates, even though such candidates cannot be corrupted by their own money, which the court has said they have a constitutional right to spend.
Declaring the Millionaires' Amendment unconstitutional, the court, in an opinion written by Alito, reaffirmed two propositions. First, because money is indispensable for the dissemination of political speech, regulating campaign contributions and expenditures is problematic and justified only by government's interest in combating "corruption" or the "appearance" thereof. Second, government may not regulate fundraising and spending in order to fine-tune electoral competition by equalizing candidates' financial resources.
The court said it has never upheld the constitutionality of a law that imposes different financing restraints on candidates competing against each other. And the Millionaires' Amendment impermissibly burdened a candidate's First Amendment right to spend his own money for campaign speech.
This ruling invites challenges to various state laws, such as Arizona's and Maine's, that penalize private funding of political speech. Those laws increase public funds for candidates taking such funds when their opponents spend certain amounts of their own money or receive voluntary private contributions that cumulatively exceed certain ceilings. Such laws, like McCain-Feingold, rest on the fiction that political money can be regulated without regulating political speech.
The more McCain talks -- about wicked "speculators," about how he reveres ANWR as much as the Grand Canyon, about adjusting the planet's thermostat, etc. -- the more conservatives cling to judicial nominees as a reason for supporting him. But now another portion of his signature legislation has been repudiated by the court as an affront to the First Amendment, and again Roberts and Alito have joined the repudiation. Yet McCain promises to nominate jurists like them. Is that believable?