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McConnell v. Federal Election Commission (docket #: 02-1674) (2003)  [Findlaw]

Argument Date 09/08/2003
Decided 12/10/2003
Supreme Court Vote 5-4
Note Various majority judgments were announced by different memebers of the Court. Hence, Justice Stevens spoke for the majority as to some issues while the Chief Justice spoke for the Court for other issues and Justice Breyer for one issue.
Supreme Court Ruling Most First Amendment claims denied
Issue1. Whether the district court erred by upholding portions of the "soft money" provision (section 101) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 166 Stat. 81, because it constitutes an invalid exercise of Congress' power to regulate elections under Article I, Section 4, of the Constitution; violates the First Amendment or the equal protection component of the Fifth Amendment; or is unconstitutionally vague.

2. Whether the district court erred by upholding portions of the "electioneering communications" provisions (sections 201, 203, 204, and 311), of BCRA, because they violate the First Amendment or the equal protection component of the Fifth Amendment, or are unconstitutionally vague.

3. Whether the district court erred by holding nonjusticiable challenges to, and upholding, portions of the "advance notice" provisions of BCRA (sections 201 and 212), because they violate the First Amendment.

4. Whether the district court erred by holding nonjusticiable challenges to, and upholding, the "coordination" provisions of BCRA (sections 202, 211, and 214), because they violate the First Amendment.

5. Whether the district court erred by holding nonjusticiable challenges to, and upholding, the "attack ad" provision of BCRA (section 305), because it violates the First Amendment.

Majority Opinion lead majority opinion, joint opinion issued Stevens, J., & O'Connor, J. (joined Souter, J., Breyer, J., & Ginsberg, J.), Rehnquist C.J (majority opinion), and Breyer, J. (majority opinion)
Dissenting Opinion Rehnquist, C.J., & Kennedy, J., & Thomas, J., Scalia, J., & Stevens, J.
Certiorari Granted 06/05/2003
Lower Court U.S. District Court for the District of Columbia
Oral Arguments Oral Arguments audio  [Oyez]
Transcript of Oral Arguments
For Petitioner
Bobby R. Burchfield for Republican National Committee, CA, et al (brief)

Jan Witold Baran for Chamber of Commerce (brief)

Kenneth W. Starr, for Senator Mitch McConnell (brief)

William J. Olson for Representative Ron Paul (brief)

For Respondent
Theodore Olson, Solicitor General, for Federal Election Commission (brief)

For Amicus
Bonita Tenneriello for California Student Public Interest Research Group (brief)

Bridget C. Asay for States of Iowa, et al. (brief)

Charles J. Cooper for National Rifle Association, et al. (brief)

Christopher J. Wright for International Experts (brief)

Craig Engle for States of VA, NC, Idaho, IN., KS, NE,Ohio,SC,SD & Utah (brief)

David C. Frederick for Senator Fred Thompson (ret.) (brief)

Donald J. Simon for Common Cause & AARP (brief)

Erik S. Jaffe for Cato Institute & Institute for Justice (brief)

Evan A. Davis for Interfaith Alliance Foundation, et al. (brief)

Floyd Abrams for National Association of Broadcasters

J. Randolph Evans for Representative J. Dennis Hastert (brief)

James Bopp Jr. National Right to Life Committee, Inc., et al. (brief)

Jay Alan Sekulow for Emily Echols, et al. (brief)

John C. Armor for American Civil Rights Association (brief)

Kevin H. Theriot for Professor David Moshman (brief)

Lance H. Olson for California Democratic Party, et al. (jurisdiction brief)

Laurence Edward Gold for AFL-CIO, et al. (brief)

Lawrence M. Noble for Center for Responsive Politics (brief)

Mark Joseph Lopez for American Civil Liberties Union (brief)

Randy L. Dryer for Bipartisan Former Members of US Congress (brief)

Richard L. Hasen for Center for Governmental Studies (brief)

Rodney A. Smith (brief)

Seth P. Waxman for Senator John McCain, et al. (redacted brief)

Steve Alan Reiss for Committee for Economic Development (brief)

News Stories & Commentary
AP, "Issue-ad restrictions set to kick in"

AP, "Supreme Court backs key parts of campaign-finance law"

Dworkin, Ronald, "The Curse of American Politics," New York Review of Books, October 17, 1996
Federal court stays campaign-finance ruling

Greenhouse, Linda, "A Court Infused with Pragmatism," New York Times, sect. A, p. 30

High court hears 2 sides of campaign finance

Nat Hentoff, "Campaign finance: Supreme Court's double standard "

Quotes from Supreme Court hearing on campaign finance

Ronald Collins & Paul McMasters, "Campaign finance: Reform trumps rights"

Tony Mauro Analysis
"First Amendment gets short shrift at high court"

Campaign-finance, theology cases to be watched closely

Scalia to Court: Heed First Amendment in reviewing campaign law

Opinion - Lower Court
Senator Mitch McConnell v. Federal Election Commission


Bauer, Robert F., "When 'the Pols Make the Calls': McConnell's Theory of Judicial Deference in the Twilight of Buckley," 153 U. Pa. L. Rev. 5 (2004)

BeVier, Lillian, "Campaign Finance Reform: Specious Arguments, Intractable Dilemmas," 94 Columbia Law Review 1258 (1994)
BeVier, Lillian, "Money & Politics: A Perspective on the First Amendment & Campaign Finance Reform," 73 California Law Review 1045 (1985)
Briffault, Richard, "Issue Advocacy: Redrawing the Elections/Politics Line," 77 Texas Law Review 1751 (1999)
Campaign Finance Bills in the 107th Congress: Comparison of S. 27 (McCain-Feingold), H.R. 2356 (Shays-Meehan), H.R. 2360 (Ney-Wynn), and Current Law

David Hudson, Jr., "Can Congress' Latest Attempt at Campaign Finance Reform Pass the Free Speech Test?"

Freedom of Expression Network, "Commentary: The Campaign Finance Page"

Hasen, Richard, L., "Buckley Is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission," 153 U. Pa. L. Rev. 31 (2004)

Main Briefs & Amicus Briefs

Mark Tapscott, Heritage Foundation, "Wake Up Conservatives! Supreme Court just did what could never happen here" (December 16, 2003)

Medhill School of Journalism: Overview & Links

Overton, Spencer, "The Donor Class: Campaign Finance, Democracy, and Participation," 153 U. Pa. L. Rev. 73 (2004)

Persily, Nathaniel & Lammie, Kelli, "Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law," 153 U. Pa. L. Rev. 119 (2004)

Persily, Nathaniel, Foreword: "Campaign Finanance After McCain-Feingold, " 153 U. Pa. L. Rev. 1 (2004)

Smith, B.A., , "Faulty Assumptions & Undemocratic Consequences of Campaign Finance Reform," 105 Yale Law Journal 1049 (1996)
Sullivan, Kathleen, "Against Campaign Finance Reform," 1998 Utah Law Review 311
Sullivan, Kathleen, "Political Money & Freedom of Speech," 30 University of California Davis Law Review 663 (1997)
Urofsky, Melvin I., MONEY & FREE SPEECH: CAMPAIGN FINANCE REFORM & THE COURTS (University Press of Kansas)

USA Today Overview & Links

Wilcox, C., & Joe, W., "Dead Law: The Federal Election Finance Regulations, 1974-1996, " 31 Political Science & Politics 14 (1998)
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