Another Irony of Being John McCain

John McCain is enduring a painfully ironic year.

As the once-anointed Republican presidential nominee for 2008, candidate McCain has suffered as irony after irony have all but eliminated his hopes of occupying the Oval Office.  Indeed, no one could have guessed just a few years ago that the man who has long cultivated an image of maverick political outsider would be seen as the stalwart Washington insider among those vying for the Grand Old Party's nomination.  Nor would anyone have thought that a revered war hero would find the electoral landscape so inhospitable when our country desperately needs to win a military victory for our security at home and our reputation abroad.

On Wednesday, across the street from the Capitol, it became clear that McCain's legislative legacy may face just as much peril as his White House candidacy.  And, once again, McCain may have no one but himself to blame.

Of course, we're talking about legislator McCain's magnum opus, the Bipartisan Campaign Finance Reform Act of 2002, better known as McCain-Feingold.  After years of effort, McCain successfully pushed the rest of us out of the political process by making it effectively impossible for anyone but the candidates and their political parties to spend money to speak directly to the voters in the weeks and days before an election. 

Specifically, McCain and Company made it illegal for organizations like the Center for Individual Freedom merely to refer to a federal candidate in a television or radio advertisement just before an election if the group pays for the airtime with donations from its general bank account.

That didn't sit well with a number of people -- in fact, everyone from the National Rifle Association to the American Civil Liberties Union to the Center for Individual Freedom.  So we all sued ... and we all lost, 5-to-4 in the Supreme Court of the United States.

But a funny thing happened in the three-plus years since that bare majority upheld McCain-Feingold in spite of the First Amendment and, for that matter, the rest of the Constitution.  A couple of justices left the High Court. 

Most notably, the swing justice, Sandra Day O'Connor retired, leaving all of the constitutional law she made as the necessary fifth vote up for grabs.  One of the issues left hanging in the balance was the future of what McCain calls campaign finance "reform," or what we know firsthand as restricting political free speech.

Indeed, if it wasn't perfectly clear before, the oral arguments in the case of Wisconsin Right to Life v. Federal Election Commission showed that McCain's campaign finance "reform" will live or die based on one vote -- that of the justice who took what was Justice O'Connor's seat, Justice Samuel Alito.  But that is really no surprise.  After all, in December 2003, the former Rehnquist Court upheld McCain-Feingold by a one vote margin, with Justice O'Connor joining the four liberals (Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer) to save the law. 

With Chief Justice William Rehnquist's passing and Justice O'Connor's retirement, both of the High Court's sides on campaign finance "reform" lost a vote.  So, if the two new justices both vote against campaign finance "reform," there will be a change.

At oral arguments Wednesday, Chief Justice John Roberts all but cast his vote in favor of more political free speech and against campaign finance "reform."  The Chief Justice asked a barrage of questions that all suggested McCain and Company had gone way too far.  So here we are, 4-to-4 with the far more coy Justice Alito as the swing vote.

The surprise is that McCain is the one who made sure it would be Justice Alito who decides McCain-Feingold's fate.  After all, it was legislator McCain who paved the way for Justice Alito's ascendancy to the Supreme Court bench. 

Less than a month-and-a-half before Justice O'Connor announced her retirement, Senator McCain brokered a bipartisan deal between seven Republican and seven Democrat senators ensuring there would be no more filibusters of judicial nominees in the 109th Congress, at least unless there were "extraordinary circumstances."  When two vacancies opened up on the highest court, the "Gang of 14" held all the cards when it came to the Senate's advice and consent.

With the nomination of Chief Justice Roberts, there were not really any cards for the Democrats to play.  After all, Chief Justice Roberts had the American public on his side from the moment President Bush announced the nomination with son Jack dancing in the wings. 

For Justice Alito, things could have gone differently, all too easily and quickly.  But they didn't, at least in part because the "Gang of 14" held together in their commitment not to filibuster the nominee.  And, on the last day of January 2006, the Senate confirmed Justice Alito by a vote of 58-to-42, with the winning margin being the votes of McCain and eight other "Gang of 14" signatories.

In other words, after years of lobbying his fellow senators to pass his campaign finance "reform," McCain may have indirectly undone his own legislation by similarly persuading his colleagues to confirm Justice Alito.  For that irony, we truly thank John McCain.