McConnell v. Federal Election Commission

PETITIONER: Mitch McConnell, U.S. Senator
RESPONDENT: Federal Election Commission
LOCATION: United States Congress

DOCKET NO.: 02-1674
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: Federal district court

CITATION: 540 US 93 (2003)
GRANTED: Jun 05, 2003
ARGUED: Sep 08, 2003
DECIDED: Dec 10, 2003

Floyd Abrams - argued the cause for McConnell et al.
Jay Alan Sekulow - argued the cause for Emily Echols et al.
Kenneth W. Starr - argued the cause for McConnell et al.
Laurence E. Gold - argued the cause for the AFL-CIO, appellants in No. 02-1755 and appellees in No. 02-2676 and 02-1702
Paul D. Clement - Deputy Solicitor General, Department of Justice, argued the cause for the Federal Election Commission et al.
Seth P. Waxman - argued the cause for the intervenor-defendants
Theodore B. Olson - Solicitor General, Department of Justice, argued the cause for the Federal Election Commission et al.
Bobby R. Burchfield - argued the cause for the political party plaintiffs

Facts of the case

In early 2002, a many years-long effort by Senators John McCain and Russell Feingold to reform the way that money is raised for--and spent during-- political campaigns culminated in the passage of the Bipartisan Campaign Reform Act of 2002 (the so-called McCain-Feingold bill sometimes referred to as BCRA). Its key provisions were a) 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; b) limits on the advertising that unions, corporations, and non-profit organizations can engage in up to 60 days prior to an election; and c) restrictions on political parties' use of their funds for advertising on behalf of candidates (in the form of "issue ads" or "coordinated expenditures").

The campaign finance reform bill contained an unusual provision providing for an early federal trial and a direct appeal to the Supreme Court of the United States, by-passing the typical federal judicial process. In May a special three-judge panel struck down portions of the Campaign Finance Reform Act's ban on soft-money donations but upheld some of the Act's restrictions on the kind of advertising that parties can engage in. The ruling was stayed until the Supreme Court could hear and decide the resulting appeals.


  1. Does the "soft money" ban of the Bipartisan Campaign Reform Act of 2002 exceed Congress's authority to regulate elections under Article 1, Section 4 of the United States Constitution and/or violate the First Amendment's protection of the freedom to speak?

  2. Do regulations of the source, content, or timing of political advertising in the Campaign Finance Reform Act of 2002 violate the First Amendment's free speech clause?

Media for McConnell v. Federal Election Commission

Audio Transcription for Oral Argument - September 08, 2003 (Part 1) in McConnell v. Federal Election Commission
Audio Transcription for Oral Argument - September 08, 2003 (Part 2) in McConnell v. Federal Election Commission

Audio Transcription for Opinion Announcement - December 10, 2003 in McConnell v. Federal Election Commission

William H. Rehnquist:

I have the opinions of the Court to announce in all 300 pages of them in No. 02-1674 McConnell versus Federal Election Commission in eleven companion cases.

The plaintiffs challenge the constitutionality of numerous provisions of the Bipartisan Campaign Reform Act of 2002.

A three-judge panel of the District Court held some provisions of the Act unconstitutional and upheld others.

After noting probable jurisdiction, we expedited the argument and decision of the cases.

Because the cases present so many issues, we have prepared three separate court opinions to explain our disposition.

Given the length of those opinions, my oral announcement will contain only an abbreviated outline of what we have decided.

In brief, the Court has concluded that with two relatively minor exceptions, the entire statute is constitutional.

Those two exceptions are Section 213 which requires political parties to choose between making coordinated or independent expenditures for their nominees, and Section 318 which prohibits minors from making contributions to political candidates or parties.

The first of the three Court opinions has two authors, Justice Stevens and Justice O’Connor.

It covers Titles I and II of the Act.

I have authored the second Court opinion discussing Titles III and IV, and Justice Breyer's opinion for the Court covers Title V.

Title I of the Act restricts the use of soft money that is money raised outside the source and amount limitations established by the Federal Campaign Act to fund the activities that influence federal elections.

Title I's central provision numbered Section 323(a) in the amended version of the Federal Election Campaign Act prohibits national political parties and their agents from soliciting, receiving, directing, or spending soft money.

The joint opinion concludes that this prohibition is an appropriate response to Congress’ legitimate concerns with preventing the actual and apparent corruption threatened by large soft money contributions and preserving the integrity of the federal election process.

The joint opinion upholds both this provision and the remaining provisions of Title I, which as the court can excuse them, largely enforced Section 323(a) by preventing state parties form using soft money to fund the activities that influence federal election prohibiting both national and state parties from soliciting and donating soft money to tax-exempt organizations that engage in federal election activity and regulating federal and state candidates and office holder’s use of soft money in connection with certain election-related activities.

Title II of the BCRA primarily regulates the funding of electioneering communications that is communications that are intended to or have the effect of influencing the outcome of federal election.

The joint opinion upholds the Act’s primary definition of electioneering communications as it applies both in the context of the disclosure provision set forth in Section 201 of the Act and in the context of Section 203 which prohibits corporations and labor unions from using general treasury funds to finance such communications.

Section 204 extends this prohibition to non-profit corporations.

The joint opinion construes Section 204 to exempt the subcategory of non-profits described in our decision in Massachusetts citizens for Life commonly called MCFL organization, and upholds it as so construed.

Title II also contains a number of provisions regulating independent and coordinative expenditures in connection with political campaigns.

The joint opinion upholds Sections 204 and 214 which provide that expenditures coordinated with political parties are treated as contributions to those parties, but find constitutional infirmities in Section 213 which requires political parties to choose between making unlimited independent expenditures or a limited coordinated expenditures in support of their nominees.

Title III and IV contains several amendments to the Federal Election Campaign Act, the Communications Act, and other provisions of the United States Code.

In my opinion for the Court, we conclude that several of the plaintiffs' challenges to this provision including Section 305 pertaining to so-called attack ads are not justiciable.

We do uphold however, Section 311 of the Act which requires that electioneering communications clearly identify either the candidate who authorized them or if they have not been so authorized, the individual who sponsored them without the candidate’s authorization.

On the other hand, we strike down Section 318 which prohibits minors from making contributions to candidates or political parties as an unconstitutional abridgment of minors’ First Amendment rights.

Finally, in the third Court opinion written by Justice Breyer we uphold the sole provision of Title V at issue in this case.

Section 504 which requires broadcasters to keep publicly available records of requests to purchase broadcast time for politically related communication.

There are several separate opinions.

I have written a dissent with respect to Titles I and V which Justices Scalia and Kennedy have joined.

Justice Stevens has written an opinion dissenting with respect to Section 305 which Justices Ginsburg and Breyer have joined.