The difference that the absence of Justice O'Connor made could hardly have been clearer.  The decision striking down the provision of the McCain-Feingold law was written by Justice O'Connor's replacement, Justice Samuel Alito.  It's a good bet that the case would have come out the other way if Justice O'Connor still had been on the bench because she voted in favor of upholding most of the provisions of the law in an earlier decision.

The Millionaire's Amendment was designed to level the playing field when a rich candidate decided to drop a huge wad of cash into an election on his or her own behalf.  Where a candidate plans to spend more than $350,000 of his own money, the law triples the contribution limits for his opponent.

Justice Alito and the court majority ruled that this violates the First Amendment. The Congress has no business equalizing election opportunities, the court said.  Justice Alito wrote: "The argument that a candidate’s speech may be restricted in order to 'level electoral opportunities' has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office.

"Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives...and it is a dangerous business for Congress to use the election laws to influence the voters’ choices."

Justice John Paul Stevens led the dissenters.  Justice Stevens would not have decided Buckley v. Valeo, the landmark campaign finance case, the way the court did in the 1970s.  He doesn't agree with Buckley's view that spending money on speech is the equivalent of speech.  Justice Stevens believes that Congress should be able to reduce the quantity of speech in elections, just as judges can bar repetitious court filings.  He wrote: "At least in the context of elections, the notion that rules limiting the quantity of speech are just as offensive to the First Amendment as rules limiting the content of speech is plainly incorrect."  

The other three dissenters did not go so far as Justice Stevens; they did say that Buckley was wrongly decided. But they believe that Congress was justified in passing the Millionaire's Amendment to avoid the appearance that congressional seats can by bought by the rich.

There are a couple of interesting questions:

- Is the court's decision liberal or conservative? Normally, decisions upholding the First Amendment are considered liberal, but the more liberal justices were in dissent here and most liberals support campaign finance laws.

- Would John McCain be happy that the kind of justices he says he would appoint to the Supreme Court are so ready to toss out his legislative handiwork? 

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