Robbin Stewart wrote:

Robbin Stewart here. First post to this list in several years;
I'd misplaced the url for awhile.
bright lines:
Henderson's opinion was well-grounded in case law: Talley, McIntyre, Valeo, ACLF, Watchtower.
Kollart-Kotelly (sp) on the other hand relied almost exclusively of the Brennan Center Brandeis brief.
However, what I found convincing was her argument that the express advocacy test was statutory and not constitutional. That means I have to go back and reevaluate all those Hasen articles and Bopp cases. I find that I now have a greater appreciation for what the McCainites are trying to do. You (Rick) seem to feel that Leon erred in his construction of the backup implied advocacy provisions.
Two judges tossed out the non-backup provisions. I like that result and am confused by the reasoning.
Leon upheld some of the back-up provisions but tossed out a vague part, which if I understand it right would have codified the test in Furgatch. (The Furgatch test, in itself, is fine, but that it was misused in Furgatch itself shows its vagueness.) So here is what the supremes could do: uphold the back-up provisions, but interpret the language Leon found vague, instead of discarding it. How to interpret it? Why, with an express advocacy test of course. (they might or might not construe back in the 30 day requirement.) So we'd come full circle.
I haven't read all the complaints and briefs. Rather, I haven't read any of them. But based on the opinion, I was surprised that it seems no one has challenged the disclaimer part of the act, which is the most vulnerable, given Watchtower. So a procedural question: Can someone file a new suit now? Would it go to a three-judge court and then to the Supremes? Or was that a one-time deal? I might be in the market for a lawyer who would want to take such a case. See e.g. Majors v Abell raising same issues.



So we'd be right back to Valeo.