The Magazine

Mitch McConnell, Judicial Activist

The Senate minority leader seeks majority opinions.

Apr 28, 2014, Vol. 19, No. 31 • By TERRY EASTLAND
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"This is the best Supreme Court, if you’re interested in a free society and in the ability of Americans to participate in the political process with a minimum amount of government restrictions. In fact, this is a great Supreme Court.”

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Of course, President Obama, this great Supreme Court’s greatest scold, didn’t say that. Senate minority leader Mitch McConnell did, in an interview last week in the wake of the Court’s decision in McCutcheon v. Federal Election Commission (FEC).

In McCutcheon, the Court, vindicating the First Amendment’s guarantee against laws abridging “the freedom of speech,” struck down so-called aggregate limits on how much an individual may contribute to candidates for federal office, political parties, and political action committees (PACs). While donors are already subject to limits on how much they can give to any single candidate, party, or PAC, aggregate limits cap the amount that they can contribute altogether, in any two-year election cycle.

First elected to the Senate from Kentucky in 1984 and its minority leader since 2007, McConnell filed in the case an amicus curiae (“friend of the court”) brief supporting Sean McCutcheon, an Alabama businessman. It is the eleventh case involving elections and the First Amendment in which McConnell has been involved—in all but one as a friend of the court. In each of the last six of those cases the Court has decided, McConnell has been on the winning side.

In Randall v. Sorrell (2006), the Court struck down limits Vermont law imposed on campaign contributions and campaign spending. A year later, in Wisconsin Right to Life v. FEC, the Court voided restrictions on “issue ads” mentioning a candidate for office within 30 days of a primary or 60 days of a general election.

In Citizens United v. FEC (2010)—the decision that President Obama used in his 2010 State of the Union speech to excoriate the justices, with some sitting in the audience—the Court ruled that the government may not limit the political speech of corporations, associations, and trade unions in the runup to a primary or a general election. In McComish v. Bennett (2011), the Court rejected Arizona’s system of providing additional funding to publicly funded candidates when they face big-spending opponents or opposition groups. And in American Tradition Partnership, Inc. v. Bullock (2012), the Court, invoking Citizens United, struck down a Montana law banning all corporate spending in state elections.

In these cases, McConnell challenged what he calls “the government impulse to control the speech of American citizens and how they run for office.” It is an impulse found in the elective branches of the federal government, and thus his own chamber, the Senate, as well as in the states, as the cases involving Vermont and Montana demonstrate. McConnell is pleased with the First Amendment “corrections” to this impulse the Court has made, calling them “outstanding decisions that move us in the right direction.”

Of course, for McConnell, things were not always moving in the right direction with respect to “political speech,” as it is often called. Indeed, in 2003 the Court reviewed the new measure known as McCain-Feingold (after its chief sponsors John McCain and Russell Feingold) and signed into law by President George W. Bush; key provisions imposed substantial limits on campaign contributions and spending. The Court sustained most of the law in McConnell v. FEC, the McConnell who brought the challenge being, of course, Mitch McConnell—he was the lead plaintiff in the only case in which he has been a party.

McConnell says that the case that bears his name was “the low point for me on this issue,” but soon enough things turned, with the Court coming around to a “view of the First Amendment and political speech similar to my own.” Why? In large part, he says, because, in 2006, Justice Sandra Day O’Connor retired and Justice Samuel Alito took her place. 

McConnell’s interest in the First Amendment and how it applies to political speech dates to the 1970s, when, just a few years out of law school, he taught a class on political parties and elections in Louisville. “I developed an academic interest and then later, when I became a politician myself, I had a practical interest in it—and a growing belief that this is a matter on which [government] ought to minimally intrude rather than micromanage everything.” McConnell’s litigating strategy (to call it that) is this: “when [I] see a case where .  .  . there’s an opportunity to push back against overreaching government efforts to micromanage political speech, I look for a way to get involved.”

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