McConnell v. Federal Election Commission: Ideology Trumps Reality, Pragmatism

Abstract

THE SUPREME COURT’S DECISION in McConnell v. Federal Election Commission,1 upholding the constitutionality of the Bipartisan Campaign Reform Act of 2002 (“BCRA”),2 was eminently predictable,3 but nonetheless stunning in the sweep of its language and the shallowness of its analysis. The majority simply had no response, and so did not try to respond, to the most simple and devastating critique made by the various dissents: that political speech now clearly has less constitutional protection than virtual child pornography, tobacco advertising, sexually explicit cable programs, dissemination of illegally received communications, nude dancing, defamation, cross burning, and flag burning.4 We need not analyze all of these cases here to grasp, intuitively, that something has gone seriously wrong in the Court’s First Amendment jurisprudence. Historically, decisions that sharply curtail civil liberties, as does McConnell, have not stood well the test of time, and are looked upon as black moments in the Court’s history. To take a few examples, think Korematsu v. United States (allowing the internment of U.S. citizens of Japanese descent during World War II);5 Buck v. Bell (upholding forcible sterilization of “feeble minded”);6 Plessy v. Ferguson (upholding segregation laws);7 or, most relevant here, the string of early twentieth century cases upholding restrictions on political speech: Dennis v. United States,8 Whitney v. California ,9 Gilbert v. Minnesota,10 Abrams v. United States,11 Debs v. United States,12 and Schenk v. United States.13 Time will tell if McConnell suffers the same fate: that the speech cases cited above involved direct calls to overthrow the government or to sabotage war efforts, and are nonetheless looked down upon today, is not a good omen for the justices in the McConnellmajority. In this brief essay, however, so soon after the decision,