I would think that Justice O'Connor's views wouldn't be terribly
relevant here, since -- unless something happens with Alito -- she'll be
stepping down shortly and neither her vote nor Justice Alito's vote
would be counted.

-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu 
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of 
daniel smith
Sent: Tuesday, January 17, 2006 1:35 PM
To: election-law
Subject: WrTL oral arguments


Having heard this morning's oral arguments, I would agree 
with much of 
Bob Bauer's commentary, but would disagree with his 
characterization of 
Justice O'Connor's position. I hear no indication that she would move 
away from her position in McConnell.

(list members should be warned to take my comments with a grain of 
lawyerly salt, as i'm not a member of the bar.)

 From the comments flowing from the bench, it seems clear that those 
justices in the majority in McConnell, though reluctant to allow as 
applied challenges, and though very dubious that the WRtL case is any 
different from other supposed "issue ads" that were shown to 
be "sham" 
ads in the McConnell case, would be willing to entertain future as 
applied challenges if they had better merits.

Souter asked Bopp pointedly, what's unusual about the WRtL ad? Bopp 
claimed it was about a current issue on which WRtL wanted to lobby 
Congress, but Souter countered that was the same with the 
Chinese trade 
negotiations ad mentioned in McConnell. The only difference 
between the 
ads, Souter said earlier, was that WRtL didn't give a phone 
number, only 
a web address to BeFair.org.

 From my notes, O'Connor made only three brief comments. The 
first came 
only a minute or two into Bopp's opening. O'Connor commented that if 
WRtL's ads did not reference Senator Feingold, none of this 
would have 
been an issue, implying the ads would have been permitted under BCRA. 
The second time she spoke she asked Bopp couldn't WRtL just 
have opened 
a segregated fund and run its ads through that PAC. The final comment 
she made (during Clement's time) was following comments by 
Roberts and 
Kennedy, both of whom expressed the concern of foreclosing as applied 
challenges in free speech cases, to which O'Conner pipped, 
you can have 
as applied challenges, but "this one doesn't meet the test" (or some 
similar language I heard from the far-reaches of the peanut gallery).

Ginsberg made the point that WRtL also opposed Feingold, and 
that it's 
important to look at the complete context in which an "issue" ad is 
being run. Bryer called the WRtL ad "shame-like."  Stevens, with some 
incredulity, asked Bopp if he thought issue ads and advocacy ads were 
"mutually exclusive," to which Bopp replied yes, he thought 
they were. 
Bopp also commented in response to a question posed by Bryer, 
on whether 
a labor union or non-MCfL corporation could run similar ads to WRtL, 
that yes they could and should be able to do so.

Scalia, like Roberts and Kennedy, were skeptical of Clement's 
argument 
that fundamental rights of speech were not being abridged. 
Thomas said 
nothing during the oral argument.


daniel a. smith, ph.d.
associate professor
internship coordinator
department of political science
003 anderson hall
po box 117325
university of florida
gainesville, fl 32611-7325

phone: 352-392-0262 x279
fax: 352-392-8127
email: dasmith@polisci.ufl.edu http://www.clas.ufl.edu/users/dasmith/