McCain-Feingold Law’s Fate to be Decided at the Intersection of
‘Strict Constructionism’ and ‘Judicial Activism’

by Mike McCabe, Executive Director

June 5, 2007

One of the most durable fictions in modern politics is the popular fable that when it comes to judges and the law, the defining issue of our time is whether “strict constructionists” or “judicial activists” control our courts.

Those who call themselves strict constructionists claim to be guided by and faithful to the original text of the Constitution. They also pledge solemn allegiance to legal precedent.

Those who have the judicial activist label slapped on them tend to be judges who believe the Constitution is a living organism that must be interpreted within the context of contemporary realities. They are routinely accused of “legislating from the bench.”

The legal challenge to the 2002 McCain-Feingold campaign reform law mounted by Wisconsin Right to Life that the U.S. Supreme Court will soon rule on is an apt illustration of just what a fairytale the strict constructionist vs. judicial activist storyline really is.

During oral arguments in late April, self-proclaimed strict constructionists such as Chief Justice John Roberts and Justice Antonin Scalia showed an almost canine eagerness to disregard precedent as they peppered attorneys for both sides with loaded questions and speechified in a way that made it crystal clear they have little regard for a Supreme Court decision that is less than four years old – the 2003 ruling in McConnell v. FEC that upheld McCain-Feingold.

What’s more, Scalia and Roberts showed no signs they even acknowledge the McCain-Feingold law doesn’t prevent interest groups from sponsoring ads during election seasons. The law only says that they can’t pay for them in the way they prefer – with corporate treasury funds. The law also says ad sponsors must fully disclose their activity to the public. Wisconsin Right to Life’s narrow challenge to McCain-Feingold isn’t about the speech of citizens. It is about corporate speech. It is about whether corporate treasury funds can be used to pay for ads focusing on candidates for office during campaign seasons.

In their zeal to protect and indeed promote corporate speech, the strict constructionists conveniently forget that at the time of this nation’s birth and in its infancy, corporations were kept on a short leash, in the form of revocable charters that limited corporations to strictly commercial activities and required them to serve the public interest. Corporations were servants, individual citizens were masters. Democracy was the exclusive domain of citizens.

None other than Thomas Jefferson said, “I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”

Jefferson, like his revolutionary brethren, was deeply wary of corporate power. Just as he famously articulated the need for a wall of separation between church and state, Jefferson also forcefully argued that, in order for the people to govern, a wall of separation between democracy and the “aristocracy of monied corporations” was essential.

That wall stood for the new nation’s first century. It was not until 1886 when a little-noticed footnote to a ruling written by a single U.S. Supreme Court justice in the infamous Santa Clara County v. Southern Pacific Railroad Company case dealt Jeffersonian democracy a severe blow by granting corporations the same rights as people under the 14th Amendment. One justice legislated from the bench, did violence to the clear intent of the Constitution’s framers, and the whole court silently embraced this revisionism that opened the door to corporate ownership of our democracy. Said another way, the court engaged in the very kind of judicial activism that today’s “strict constructionists” claim to abhor.

We’ll find out soon how the court rules on this latest challenge to McCain-Feingold. But the signals sent during oral arguments by the strict constructionists are revealing. They indicate a comfort level with the corrupt status quo in national politics. They show a fondness for the judicial activism of the Santa Clara court. And they reveal either unwillingness or inability to distinguish between commerce and democracy.

There is considerable irony and hypocrisy to be found in the realization that if the Supreme Court abandons both recent precedent and original constitutional intent and begins unraveling McCain-Feingold, thereby further chipping away at the wall safeguarding democracy that Jefferson and his compatriots built, it will be Justices Roberts, Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy who do it.

Each and every one of them a strict constructionist. Or so we’re told.

WDC Executive Director Mike McCabe
Mike McCabe
WDC Executive Director
2000-2014

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