Skepticseye.com

Attending these arguments is getting to be something of a reunion. Lots of handshakes and the occasional kiss on the cheek. I learned my line-standing buddy from the first Wisconsin argument has moved into my neighborhood. People speculated aloud what Ted Olsen’s real hair looks like. Good times, standing there for an hour . . .
But after the Court delivered two death penalty opinions and swore in a passel of new SCBar members (moved in part by Bopp and Waxman, apparently the trendy thing to do is get an arguing counsel to move your admission - if only I’d known!), it was down to business.

Were the Wisconsin Right to Life ads just like those found the functional equivalent of express advocacy in McConnell v. FEC? (General Clement) Or were they just like the one’s identified as genuine issue advocacy that should be protected from regulation? (Bopp for WRTL). Both sides invoked the voluminous record in this case and in McConnell, seemingly to demonstrate that the sheer quantity of stuff generated in these cases makes their judgments appropriate. (Hello Justice Ginsberg).

Look, any litigator can build a big record. Government litigators, whose clients use tax dollars for these cases, are really good at it. So what? Please, everybody, lets get over the Brandeis-brief fetish. Justice Scalia hit the nail early - in McConnell you had a lot of social science goop. This is a real case.

And apparently the nugget within the goop escaped the otherwise incredibly gifted Paul Clement. Look, the core issue here is whether this ad is like one prototype or like the other. You need to construct a standard by which one answers this question. You can’t measure “outside the mainstream” of issue ads. Justice Roberts asked repeatedly “How do we tell?” The government had no real answer. It does no good to throw around an undefined category like “issue advertising.”

Now the government did admit that there could be better as-applied challenges to the electioneering periods at issue here. So, people of the nonprofit sector, take note! If your (c)(3) status makes it hard to start a PAC, then you get greater rights! Or if you have been saying the same thing for months and months, the fact you’re saying it during the blackout period before an election might be OK! Where this comes from I can’t say, but to paraphrase Dr. Seuss, I’ll bet it’s come a long, long way.
As for Seth Waxman, who’s life has apparently been made more of a burden by the amici in campaign finance cases (dude, sorry) — through him we learn that the WRTL case is about evaulating content, which makes it different from Massachusetts Citizens for Life, which was just about the status of the speaker. Hmm, you sure? Because, you know, if the MCFL “Special Edition” content hadn’t contained express advocacy, the rest of the opinion in MCFL would have been . . . pointless. Because there wouldn’t have been an “expenditure.” (Oh, yeah.)

Justice Alito (not the cute one, the other one. There, at the end of the bench) is the Clint Eastwood of the Supreme Court. He doesn’t say much, but you’d best listen to what he does say. When his eyes narrow, and he asks whether the intervenors are really taking about a reasonable person standard, you can almost see the glint of steel as Waxman was drawn into contradicting himself. When toward the end of the argument, Alito mentioned that the 30 and 60 day blackout periods were in fact far longer because of overlapping media markets, you could feel certain attorneys wince.
Justice Breyer mentioned with drama that he’d read the 1000 page opinion (record? who knows?) from the district court. (Should he get a prize?) I have been pretty critical of Breyer’s approach in campaign finance cases, and I am convinced he believes the law must develop in accord with his notions of competing constitutional interests and his appreciation for “active liberty.” Today he was better, I admit.

But, sir, the Constitution doesn’t contain any of this. The First Amendment doesn’t instruct Congress to enact laws that serve active liberty - it forbids Congress from enacting laws that abridge the freedom of speech, press and petition. You may argue as an academic that the larger purpose behind the constitutional guarantees was to facilitate democracy, but considering the broad protection for speech given there, as opposed to the narrow category of people permitted to vote, you’ve got some explaining to do.

Breyer’s big point today was that if WRTL gets its way, the edifice of campaign finance regulation will crumble, and we will soon be living in grass huts trading beads for currency while corporations spend money on campaign ads. Or at least corporations will be able to contribute to candidates.

No this doesn’t follow. But he said it with conviction. (Not the grass huts part.  I made that up.)  Which, I guess, is what counts.

I also wonder about the arguments Souter and Breyer were making against WRTL - that suggested only sincere speakers deserve protection. “You just want to defeat candidates” or “you just want to overturn McConnell” Can’t a group want some things, but have a valid point that others (who may not join all your goals) will find persuasive? I want to be a good scholar, I also want tenure, happy children, nice clothes and a decent wine at dinner. Does the fact I want the happy children somehow cheapen my desire for professional success, or for the wine?

Can’t WRTL “oppose” a candidate’s election prospects, but also want to influence that officeholder in policy positions he takes? How does the fact they may want both to petition and to influence the election erode the legal protection the Constitution extends to the petitioning activity?