A Liberalizing Agenda
The United States Supreme Court upheld McCain-Feingold almost completely in its decision in McConnell v. Federal Election Commission.1 The McConnell decision may mark the beginning of the end of judicial efforts to limit the power of Congress over political speech. In the absence of constitutional constraints, politics will drive campaign finance regulation down one of two paths. We have already spent thirty years on the path of oversight and control of political speech marked out by the Federal Election Campaign Act of 1974 and by McCain-Feingold. The difficulties and dangers of that path may convince Americans of the need for an alternative way forward, a path that comports with the Madisonian vision of politics. In this chapter I look down the path of increased regulation and lay out an alternative.
Near the end of 2003 the Supreme Court upheld McCain-Feingold's most extensive restrictions on political speech. The decision embodies in many ways the Progressive vision of politics. Just as the Carolene Products footnote announced that economic activity no longer enjoyed constitutional protections, McConnell reveals for now that the Court will recognize only minimal protection for political speech in the face of congressional attacks.
The majority opinion stipulates that the constitutionality of McCainFeingold's soft money prohibition requires a balancing of a lesser First Amendment interest (the right to contribute to campaigns) and the anticorruption rationale. Who strikes that balance? One justice had earlier