McCain-Feingold Unstable Law

That is the assertion that Sen. Mitch McConnell, the name plaintiff in McConnell v. FEC from 2003, makes in yesterday's Wall Street Journal.

Those who agree with me have reason to hope that the Supreme Court will overturn this restrictive provision. One reason is that the court already acknowledged its potential harm in McConnell v. FEC; another is that the number of groups wrongly swept up by the blackout provision will only multiply as the primary season becomes longer. The prospect of so many appeals would itself be a sign of the law's instability.

The irony in all of this, of course, lies in another prospect: that groups as dissimilar as Wisconsin Right to Life and Planned Parenthood of Wisconsin might soon stand together to applaud the same ruling.

And if the latter happens, is that not an signal to the Congress that McCain-Feingold is a poor law indeed?

Bob Bauer expounds on Sen. McConnell's point:

McConnell does, however, predict that the law will continue to be vigorously litigated, and he sees in this a mark of "the law’s instability." This is worth considering: that the significant (and some would say, mounting) opposition to the law, and the endless disputes over its meaning and alleged "loopholes," have sapped its credibility and put into doubt its effectiveness. This instability is costly—to the litigants, but also to the bystanders, who include not only members of a befuddled public but also a range of political actors denied any clear or settled understanding of what the law allows. "Specialists" are springing up all over the place, ready to the help. Their services are not cheap; access to those services is not widely available.

snip

In truth, no part of the law is uncontested: not the ban on party soft money, not the solicitation of soft money by candidates or officeholders, not the ban on corporate or union pre-election advertising. It is all contested, these and other provisions, and the disputes show no sign of abating. Senator McConnell is right: the law is unstable. And here is to be found a clue to its life expectancy.

The wide range of the law and its many disparate provisions means that very little will escape the crucible of the courtroom. While many laws are often challenged upon enactment, the fact that even its sponsors are not of a common mind about the purposes of the bill and its effects should be an indicator of the continued efficacy of the law, or more accurately its lack of efficacy.