<x-flowed>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/


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