McConnell v. Federal Election Commission

McConnell v. Federal Election Commission
McConnell v. Federal Election Commission
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued September 8, 2003
Decided December 10, 2003
Full case name Addison Mitchell McConnell v. Federal Election Commission
Citations 540 U.S. 93 (more)
124 S. Ct. 619; 157 L. Ed. 2d 491; 2003 U.S. LEXIS 9195; 72 U.S.L.W. 4015; 17 Fla. L. Weekly Fed. S 13
Prior history Mixed rulings by both the District Court for the District of Columbia and the Court of Appeals for the D.C. Circuit.
Money is property, not speech. Still, not all political speech is protected by the First Amendment from government infringement.
Court membership
Case opinions
Majority Stevens, O'Connor, joined by Souter, Ginsburg, Breyer
Majority Rehnquist, joined by O'Connor, Scalia, Kennedy, Souter
Majority Breyer, joined by Souter, Ginsburg, Stevens, O'Connor
Concurrence Scalia
Concurrence Thomas
Concurrence Kennedy, joined by Rehnquist, Scalia
Dissent Rehnquist, joined by Scalia, Kennedy
Dissent Stevens, joined by Breyer, Ginsburg
Laws applied
U.S. Const. amend. I; 116 Stat. 81

McConnell v. Federal Election Commission, 540 U.S. 93 (2003),[1] is a case in which the United States Supreme Court upheld the constitutionality of most of the Bipartisan Campaign Reform Act of 2002 (BCRA), often referred to as the McCain–Feingold Act.

The case takes its name from Senator Mitch McConnell, Republican of Kentucky, and the Federal Election Commission, the federal agency that oversees U.S. campaign finance laws.

It was partially overruled by Citizens United v. Federal Election Commission, 558 U.S. 50 (2010).[2]



The case was brought by groups such as the California Democratic Party and the National Rifle Association, and individuals including U.S. Senator Mitch McConnell, then the Senate Majority Whip, who argued that the legislation was an unconstitutional infringement on their First Amendment rights. Senator McConnell had been a longtime opponent of BCRA in the Senate, and had led several Senate filibusters to block its passage.

In early 2002, a multi-year effort by Senators John McCain and Russell Feingold to reform the way money is raised and spent on political campaigns culminated in the passage of the Bipartisan Campaign Reform Act of 2002 (the so-called McCain-Feingold bill). Its key provisions were 1) a ban on unrestricted ("soft money") donations made directly to political parties (often by corporations, unions, or wealthy individuals) and on the solicitation of those donations by elected officials; 2) limits on the advertising that unions, corporations, and non-profit organizations can engage in up to 60 days prior to an election; and 3) restrictions on political parties' use of their funds for advertising on behalf of candidates (in the form of "issue ads" or "coordinated expenditures").

In June, 2003, the D.C. Circuit issued a ruling on the constitutionality of the law, but the ruling never took effect because the case was immediately appealed to the U.S. Supreme Court.

Oral arguments

The Supreme Court heard oral arguments in a special session on September 8, 2003. On Wednesday, December 10, 2003, it issued a complicated decision totaling 272 pages in length, that, with a 5-4 majority, upheld the key provisions of McCain-Feingold including (1) the "electioneering communication" provisions (which required disclosure of and prohibited the use of corporate and union treasury funds to pay for or broadcast cable and satellite ads clearly identifying a federal candidate targeted to the candidate's electorate within 30 days of a primary or 60 days of a general election); and (2) the "soft money" ban (which prohibited federal parties, candidates, and officeholders from raising or spending funds not in compliance with contribution restrictions, and prohibited state parties from using such "soft money" in connection with federal elections).


Justices Breyer, Stevens, O'Connor, Souter, and Ginsburg established the majority for two parts of the Court's opinion:

  • With respect to Titles I and II of the BCRA, Justices Stevens, O'Connor wrote the opinion of the Court.
  • With respect to Title V of the BCRA, Justice Breyer wrote the Court's opinion.

Because the regulations dealt mostly with soft-money contributions that were used to register voters and increase attendance at the polls, not with campaign expenditures (which are more explicitly a statement of political values and therefore deserve more protection), the Court held that the restriction on free speech was minimal. It then found that the restriction was justified by the government's legitimate interest in preventing "both the actual corruption threatened by large financial contributions and... the appearance of corruption" that might result from those contributions.

In response to challenges that the law was too broad and unnecessarily regulated conduct that had not been shown to cause corruption (such as advertisements paid for by corporations or unions), the Court found that such regulation was necessary to prevent the groups from circumventing the law. Justices O'Connor and Stevens wrote that "money, like water, will always find an outlet" and that the government was therefore justified in taking steps to prevent schemes developed to get around the contribution limits.

The Court also rejected the argument that Congress had exceeded its authority to regulate elections under Article I, Section 4 of the Constitution. The Court found that the law only affected state elections in which federal candidates were involved and also that it did not prevent states from creating separate election laws for state and local elections.

Two dissenting opinions were included in the decision:

  • Justice Stevens, joined by Justices Ginsburg, and Breyer, dissented on one section of the part of the Court's opinion written by the Chief Justice.
  • The Chief Justice, joined by Justice Kennedy and Scalia, issued a 15-page dissent against the Court's opinion with respect to Titles I and V of the BCRA.

Three other justices wrote separate opinions on the decision:

  • Justice Kennedy, joined by the Chief Justice, issued a 68-page dissenting opinion and appendix, noting that BCRA forces "speakers to abandon their own preference for speaking through parties and organizations."
  • Justice Thomas issued a separate 25-page dissenting opinion noting that the Court was upholding the "most significant abridgment of the freedoms of speech and association since the Civil War."
  • Justice Scalia issued a separate 19-page dissenting opinion, a "few words of [his] own," because of the "extraordinary importance" of the cases.

Overturned Portions

On July 5, 2007, in Federal Election Commission v. Wisconsin Right to Life, Inc., the Supreme Court ruled that the organizations engaged in genuine discussion of issues were entitled to a broad, "as applied" exemption from the electioneering communications provisions of BCRA (those portions of BCRA that limited advertising that named a particular candidate by name within 30 days of a primary election and 60 days of a general election, if the ad was paid for by a corporation or union). Many observers argue that the exemption crafted by the Court effectively nullifies those provisions of the Act and overrules that portion of McConnell, but the full impact of Wisconsin Right to Life remains to be seen.

See also


  1. ^ 540 U.S. 93 (Full text of the decision courtesy of
  2. ^ Hasen, Richard L. (2010-01-21). "Money Grubbers: The Supreme Court kills campaign finance reform". Slate. 

Further reading

  • Downie, Joshua (2004). "McConnell v. FEC: Supporting Congress and Congress's Attempt at Campaign Finance Reform". Administrative Law Review 56: 927–936. ISSN 00018368. 
  • Levy, Robert A.; Mellor, William H. (2008). "Campaign Finance Reform and Free Speech". The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. New York: Sentinel. pp. 89–106. ISBN 9781595230508. 
  • Lowy, B. L. (2005). "Not Quite Shays' Rebellion: Putting McConnell v. Federal Election Commission in Perspective". University of Miami Law Review 60: 283. ISSN 00419818. 

External links

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