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No, really.  Suppose you referred to a candidate as a “kori bustard.”  Would that be express advocacy?  A “promote” message or an “attack” message?  They are cute.

From the beach, no less! Enjoy.

A Friend of the Skeptic has forwarded this:

06-589 CHRISTIAN CIVIC LEAGUE OF MAINE V. FEC, ET AL.
The judgment is vacated and the case is remanded to the United States District Court for the District of Columbia for further consideration in light of Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. ___ (2007).

As people may recall, this matter bore some resemblance to that litigated in Wisconsin, but had a little trouble getting off the ground, because the court found the issues either moot or unripe. See my past comments here. And here. But, Wisconsin’s justiciability holding, unanimously joined by all Justices, see note 1 of Souter’s dissent, will require a “rethinking” of that holding.

Anticipate another win for the Bopper.

Featuring a sizable percentage of the small but mighty Mason Law faculty!  Call in!

After a brief, server-induced interruption.  Thanks to the several folks who thought to email me, since I might not have known things were amiss.

Meanwhile, watch those trumpets. (HT to Ginger, who emailed me a different, but equally compelling version, of this story).

Here are some slightly more sober-minded thoughts on the Court’s Wisconsin decision.

Who got to write: Roberts, Man of Reason, Scalia, Man of Tradition, and Souter, Man Who Hates Political Spending, Especially by These Weirdos.

NOT Thomas, Man of History & Liberty, Kennedy, Man of Equivocation, Stevens, Man of McConnell, or Breyer, Man of Active Liberty (When Parties and Candidates are in the Dock, Anyway).

Why?: Well, Roberts had to. Scalia needed to get the stare decisis point out there. Breyer doesn’t care about the corporate/labor ban, so he doesn’t have a reason to part with the Souter/Ginsburg/Stevens block.

What’s Right: Roberts is doing his level best to incorporate campaign-finance-first-amendment-analysis into the modern First Amendment rubric. He applies strict scrutiny! He favors speech in close cases! Wow. Alito correctly notes that the Court isn’t stuck with this if in practice speech is chilled.

Scalia looks at the Roberts efforts, and correctly diagnoses the problem with talking about “function equivalence” and “reasonableness” – those notions are vague and imprecise. If they add anything to the “express advocacy” standard (not a model of precision in real life anyway) we’re not sure what that “plus factor” is.

Souter is right that the press likes to hyperventilate about money in politics.

What’s Wrong: Roberts’s test IS vague, and his opinion isn’t completely consistent. Why is “functional equivalence” the same as the “no reasonable interpretation as anything other than . . .” test? The word “functional” seems naturally to contain an element of “effect” and since Roberts applies precedent (correctly) to shun an “effects test” shouldn’t he be clearer about abandoning “functional equivalence”? If he isn’t, then what is he doing? Moreover, the “no reasonable” construction reminds me of the “judgment notwithstanding the verdict” standard in federal civil procedure. There, we are pretty comfy with judges figuring out what a reasonable juror could find in an specific matter. But judges are political creatures, and I’m not sure I feel great about providing similar discretion here that sets precedent for others.

Scalia appeals to the long history of decisions limiting the reach of 441b. Sadly, there isn’t one. I don’t think Scalia in any other context would swallow an appeal to history that began with the Burger Court! He assumes that the Court took a pass in the 40s and 50s on the constitutional problems with the corporate ban because it knew the ban was problematic. But lots of states had similar laws, and I think one could reasonably argue that the Court was avoiding holdings that would call into question the “accepted” exercise of State police power, especially over state-chartered corporations. In any case, the history isn’t strong, and requires some measure of ESP to argue. Let’s argue merits instead.

Souter — Oh god. His history about the regulation of contributions is beside the point. His distaste for political activism is palpable. His willingness to cede regulation of politics to interested parties (incumbents) is disturbing. You can give him credit for consistency over the years. That’s about it.

What’s Next: The FEC attempts to write a regulation - oh wait, they’ve already got 100.22(b). Well, that will be an easy Agenda Document. Jim Bopp gets a Litigation Prowess Award for obtaining a better result than he asked for. A big commercial corporation tries to take advantage of this, and tees up Son of MCFL.

Is WRTL v. FEC a “sea-change” decision? Or not that big of a deal? I think perhaps it is both. There is a sea change in the sense that 5 justices are ready to take the First Amendment seriously in the corporate and labor context. But the Roberts test leaves space for the same kinds of content-based speech disagreements we’ve seen for 30 years. Nothing here clears the path.

“On Wisconsin!”, new and improved!
On, Wisconsin! On, Wisconsin!
We reasonably relate
This decision brought before us
Does BCRA explicate

Corporations, 5 implore us
Probably have the right
To discuss the legislative
With elections close in sight

This, friends, is the kind of insight you won’t find anywhere else. More to come, of course, once I wade through Souter’s aria.

Is the upshot of WRTL:

-that the Constitution allows the government to prohibit corporations from making expenditures that contain messages of express advocacy, which will be evaluated by whether it could not reasonably be something other than express advocacy, looking at the message itself with limited references to outside context?

If that’s true, isn’t this Furgatch (807 F.2d 857 (9th Cir. 1987)) on steroids? (Here’s the 9th circuit applying Furgatch in a California Right to Life case, unfortunately Furgatch itself does not appear to be available for free online).

Could the Roberts Court be siding with the 9th Circuit, and against the 4th Circuit?  Who woulda thunk it?

Plunge right through that limit!

I’ve been on planes all day, and no I haven’t read the Wisconsin Opinion.  (Reading the emails doesn’t count). I will, and provide my pithy, penetrating analysis . . . well, tomorrow.  I’ve been awake 20 hours now and so I will catch this on the rebound.

Even if it is the tacky reprint version.  Enjoy!