Basic Flow of Oral Argument in FEC/McCain v. Wisconsin Right to Life

Although the oral argument transcript will be available shortly, below is my reconstruction of the basic flow of this morning's oral argument in FEC/McCain v. Wisconsin Right to Life ("WRL"). (I posted a short synopsis earlier. I also must disclaim any expertise on McCain Feingold's provisions or this case in particular. These are purely my impressions from this morning's argument.)

Solicitor General Paul Clement gave his usual polished performance as counsel for the US government in arguing that McCain Feingold was constitutional in its application to the WRL ads. Chief Justice Roberts seemed concerned by the breadth of the government's argument and insisted that SG Clement spell out what kinds of ads would be protected by the First Amendment and not banned by McCain Feingold if WRL's ad could be banned as the government argued. SG Clement gave three examples: 1) a 501 (c)(3) organzation that did not have time to set up a separate PAC, noting that WRL had a separate PAC; 2) an ad run in a primary in which the candidate was running unopposed; and 3) an advertising series that had begun long before the blackout period but was continuing during the blackout period.

Justice Kennedy rebuffed the SG's argument that WRL's position was weakened by the fact that WRL did not run its filibustering ads until the 60 day blackout period was in effect, rather than running them earlier in the year when filibustering was also an issue. Justice Keenedy suggested that the public only pays attention near an election, so that it made sense to run ads during election periods even if the issue had arisen earlier. Justice Kennedy also raised the point that there might be political value in running ads regarding an unopposed (or "safe") candidate's positions in order to influence the conduct of the safe candidate after reelection.

Justice Scalia asked how the government could look at the subjective intent of the WRL in running the ad and eloquently reminded the government that in a First Amendment case citizens are not supposed to have the burden of proving that their speech is permissible. He spoke of the need for a clear line as to what ads enjoyed First Amendment protection from McCain Feingold regulation.

Former SG Waxman argued on behalf of Senator McCain. Chief Justice Roberts pressed him for what test he would use to determine whether an ad was protected by the First Amendment from regulation. He proposed that ads that were the "functional equivalent of express advocacy" would be subject to regulation. The Chief Justice further asked whether the burden of proof on a First Amendment challenge was on the government or the citizen.

Justice Alito also queried Waxman as to the test he was proposing and whether it was akin to "would a reasonable person see this ad as electioneering"? He also asked whether Waxman was troubled by the array of advocacy groups supporting WRL's position. Mr. Waxman responded with a lengthy discussion of why the ACLU was wrong to take a position in support of WRL's ads when the ACLU has a policy of not running political ads advocating any particular candidate. Justice Scalia interrupted to ask Mr. Waxman why he was picking on the ACLU.

Jim Bopp presented a very solid argument in favor of WRL's position. He began by directing the Court's attention to the fact that government experts in the trial court had said that WRL's ad was not a sham ad but was truly grass roots advocacy. In other words, even under McConnell's test, the ad should be protected. Otherwise, Bopp argued, the government would simply be relying upon the subjective intent of the speaker to determine whether or not speech was allowed, ie., if the speaker intended to be electioneering, the ad would be regulated, if the speaker had no such intent, the ad would be protected.

Justices Breyer and Souter ted the argument by insisting that context and intent (both of the speaker and of the listener) was all-important in determining whether an ad was protected speech or not. Justice Breyer insisted that WRL's goal was overturning McConnell, not simply protecting this particular ad. Mr. Bopp replied that basic First Amendment law does not allow the government to regulate protected speech simply in order to regulate unprotected speech.

Justice Kennedy asked Mr. Bopp to explain how the WRL ads were grass roots ads like hypotheticals that had been discussed approvingly in McConnell.

Justice Souter insisted that context was all important and that speech's meaning is determined solely by the listener. Mr. Bopp insisted that a subjective test was too vague if it depended on the listeners' intent and not the meaning of the actual words. Justice Souter insisted that context has always been considered in determining whether speech was protected. He also characterized Bopp's argument as saying that the voters are dumb, so their understanding of an ad's intent should not determine whether it is protected.

As a bright line, Justice Scalia and Mr. Bopp suggested that the government can regulate corporations writing checks to candidates but not the independent speech of the corporations.

Justice Stevens skeptically asked whether the real intent of the WRL ad could have been to get Senator Feingold to change his vote on filibustering judicial nominees. Mr. Bopp defended the plausibility of such an ad by claiming that Wisconsin's other Senator (Senator Kohl) had changed his position on the filibuster earlier. At this point either CJ Roberts or Justice Scalia interjected, "Is that called democracy?"

CJ Roberts ended questioning of Bopp by asking him to outline his argument for winning without overturning McConnell.