Last June, upon learning that the Supreme Court had ruled Obamacare’s individual mandate constitutional, many observers were forced to concur with the Dickens character who opined, “If the law supposes that… the law is an ass.” Yet, the increasing number of anti-PPACA lawsuits that have been receiving serious attention from the courts suggests that the legal system may not be as irrational as it seemed when Chief Justice John Roberts began braying from the bench on June 28. If this seems Pollyannaish, consider the fate of McCain-Feingold.
In December of 2003, many were just as shocked and dismayed when the Supreme Court upheld the Bipartisan Campaign Reform Act (BCRA) as they were by the bizarre Obamacare decision. BCRA was an outrageous assault on the First Amendment, and yet the Court allowed most of its provisions to stand. Yet, anyone who had predicted that McCain-Feingold, as this abomination was more commonly known, would be moribund a mere six years and one month after the Court had ruled it constitutional would have been disregarded as hopelessly naïve.
Nonetheless, the opponents of McCain-Feingold launched a series of legal attacks that met with little success until 2007, when the Court ruled in FEC v. Wisconsin Right to Life. In that decision, the justices ruled unconstitutional the law’s proscription against campaign ads mentioning candidates by name within a certain period prior to an election. Then, in 2008, the Court voided another crucial provision in Davis v. FEC. Finally, in early 2010, the Court delivered the coup de gras with its landmark ruling in Citizens United v. FEC.