Campaign Diaries

Two weeks ago, the Supreme Court’s decision in Boumediene v. Bush injected Guantanamo in the presidential race and led to a prolonged back-and-forth between John McCain and Barack Obama on the issue of terrorism. This week, three of the Supreme Court’s decisions resonated in the political arena: Davis v. FEC, DC v. Heller and Kennedy v. Louisiana. All decisions were rendered 5-4 along the traditional ideological lines, with Justice Kennedy being the swing vote. As this is an electoral blog rather than a legal one, I will focus here on the political consequences of these rulings. For more information on legal implications, I suggest the always excellent Scotus Blog.

(1) Millionaire’s amendment. The Supreme Court’s striking down a key campaign finance provision yesterday was overshadowed by the decision in the more high-profile gun control case, but it is FEC v. Davis (a 5-4 ruling with Justice Alito writing for the Majority) that will have the most obvious and direct political consequences. Until now, if a candidate spending his own money passed a certain threshold, the limit on the contributions his opponent could receive would rise (from $2300 to $4600 at first). This was an obvious effort to level the playing field and find a way for candidates to survive when facing self-funders trying to buy their way into office (starting with Mike Bloomberg). But the Supreme Court decided that raising the limit only for the opponent was unconstitutional, and that the Millionaire’s amendment constituted a discrimination against a wealthy candidate’s use of his own money and speech under the 1st amendment.

While the decision did not ban regulations on soft money and certainly did not invalidate the McCain-Feingold Act (note that Russ Feingold did not seem saddened by the decision), it constitues a huge problem for candidates who are struggling to remain on par financially. Fundraising disparities are a perennial problem of American politics in any contest, but it is made much more acute when one of the candidates can tap into unlimited resources (Bloomberg outspent Ferrer 17:1 in 2005). While the law might not have been perfect, it was a necessary protection against a candidate’s overspending and its removal will help self-funders over the next few months. SSP has a list of candidates who now gain a bigger advantage and most of them are unsurprisingly Republican, including Vern Bunchanan in FL-13, Marty Ozinga in IL-11, Sens. Elizabeth Dole and Gordon Smith, etc. [Update: It appears that the SCOTUS's decision applies only to the provisions regarding the House. There is little doubt that a court will strike down the same provision for the Senate now that the Supreme Court has ruled, but it remains to be seen whether all of that can happen in time for Bruce Lunsford, Dole and Smith to take advantage of it this cycle.]

However, it is important to note that the “Davis” whose suing the FEC triggered the decision is Jack Davis, a Democratic candidate in NY-26. Davis ran unsuccessfully in 2004 and 2006 against Rep. Reynolds, wasting $4 million of his money in the process even though the Foley scandal in the last weeks of 2006 seemed assured to sink Reynolds for a while. Now, Davis (a wealthy and old industrialist who argued that he was at a… disadvantage because his spending millions would allow his opponent to raise a bit more money) is running again and planning to spend around $3 million to win the Democratic primary and general election…

(2) Gun control. Perhaps the most awaited decision of this term along with Boumediene, DC v. Heller was the Supreme Court’s first ruling on the 2nd amendment in decades and perhaps the first to address the question of whether the right to bear arms is reserved to militias or to individuals. The mere fact that Justice Scalia was the one writing the decision should have been enough to give heartburns to proponents of gun control, and the majority indeed ruled that DC’s ban on handguns was unconstitutional, finding an individual right to bear arms in the second amendment. The New York Times explains that the ruling was narrow enough that it should not challenge most gun control laws across the country, though there will be trouble for a number of bans in cities (Chicago’s ban seems particularly at risk) and the NRA is getting ready to start a new round of litigation.

Scalia laughed off the argument that the Supreme Court had rejected the individual rights interpretation in a 1936 decision, calling that precedent ruling a “virtually unreasoned case.” As was expected, the debate hinged largely on linguistic disagreements regarding the text of the second amendment: Where was the coma, what did that mean and what was the primary clause of the sentence? Justice Stevens fired back at Scalia’s reading that it was a “a strained and unpersuasive reading.”

It is difficult to know how this ruling will play out at the presidential level. On the one hand, it essentially removes an issue from the table by resolving it in favor of conservatives. There will be no hostile passion awakened by this decision among voters hostile to gun control, whereas the GOP would have done everything to be an outlet for their anger had the Supreme Court ruled in favor of DC. In fact, the NRA has never been in a better position — as this is the first time that the SCOTUS finds an individual right to bear arms — and that might remove the issue’s emotional appeal.

On the other hand, the ruling does inject the issue in the national discussion and Republicans are sure to point out that the decision was only 5-4. The individual right to bear arms hangs only by a vote, they will say, and it is important to elect McCain to save (newly-established) gun rights. Over the past 10 years, Democrats have shied away from gun control issues, as the GOP successfully used the gun, gods and gays to drive down Democratic support in the heartland and the last thing the Obama campaign wants in 2008 is for these topics to be central to people’s minds. In fact, the Democratic platform of 2004 endorsed the individual rights interpretation of the second amendment, putting it in line with the Suprme Court’s decision yesterday.

The reactions of the two presidential candidates were thus entirely unsurprising: McCain celebrated the ruling, which he said “ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms.” Obama, on the other hand, sought to tiptoe around the issue without really committing himself. Despite a list of prior occasions on which he had implied that he found no problem in DC’s hand gun ban (as reviewed by Marc Ambinder), his statement yesterday endorsed the second amendment as an individual right and strongly suggested that he was not troubled by the Supreme Court’s decision, which he described as “much-needed guidance.” He in fact chose to concentrate on the parts of the ruling in which Scalia admits that gun rights do not mean that any control is unconstitutional and expressed satisfaction that the right to bear arm was found as “not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe.”

Overall, the issue does not seem to have the urgency even for conservatives that it did in 2000. The refusal by most Democrats to go near this issue makes it very hard for Republicans to hit them with it and it just seems hard to imagine gun rights and Heller v. DC having a major influence on this election.

(3) Death penalty. In Kennedy v. Louisiana, the Supreme Court ruled that the death penalty could not be applied for child rapists and that such a punishment would be unproportional. The majority was moved by the fact that no one has been executed for a crime that did not result in the death of the victim for more than 40 years. And despite the fact that the Court upheld the death penalty with lethal injection just a month ago, the majority opinion in this decision contained statements that were unexpectedly critical of the death penalty: “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

This ruling is the least likely to have an impact on the presidential race, not only because the death penalty has long not been the emotional issue it was in 1988 when it tripped Michael Dukakis, but because the two presidential candidates both denounced the decision. John McCain commented that he was profoundly disturbed that “”there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments.” Obama, meanwhile, criticized the ruling as a “blanket provision” that he “opposed:” “I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution.”

While Obama’s stance might have come to a surprise (it did to me), it shouldn’t have as Obama has long held this position. In the Audacity of Hope, years before this case made it to the Supreme Court, he wrote:

While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes — mass murder, the rape and murder of a child — so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment.

Many on the Left will certainly be annoyed now that Obama’s position has gained more coverage and by the fact that the Democratic nominee is opposing one of the only favorable SCOTUS rulings liberals have had this year. Coming merely days after Obama’s disappointing reversal on FISA, the timing of the Supreme Court decision gives the painful impression of a fast-paced move rightward to prepare for the general election — though his consistency on the death penalty issues suggests this centrism is less of a drift as where he is naturally.