Wednesday, April 25, 2007

Supreme Court Hears Oral Argument in Free Speech Case Today

I just returned from listening to the Supreme Court oral argument in FEC/McCain v. Wisconsin Right to Life. The issue is whether application of the McCain Feingold Act to television ads by Wisconsin Right to Life ("WRL") violated the Free Speech Clause of the First Amendment. McCain Feingold's restriction on political ads for or against a political candidate by corporations or labor unions 60 days before a general election was held facially constitutional a few terms ago in McConnell.

WRL challenged its application to a television ad that WRL ran during the 60 days before a general election that stated that a group of senators,including Senator Feingold of Wisconsin, were threatening to filibuster President Bush's judicial nominees and urged viewers to visit WRL's website for further information.

Chief Justice Roberts and Justice Scalia fired most of the questions indicating they thought the law's application was unconstitutional. Justices Breyer and Souter consumed most of WRL's time with questions that clearly indicated their deep concern that the McConnell decision is in danger of being overruled. I have rarely heard either of those two sound so emotional in their questioning of counsel. They seemed truly upset by the possibility that McConnell might be abandoned as well as adamant that the ad in question should be banned under McCain Feingold.

Justices Ginsburg and Stevens seemed inclined to hold valid the law's application to the ad. Justice Thomas did not raise any questions. Justice Alito questioned Seth Waxman about the fact that so many advocacy groups from across the spectrum found application of the ad in this case troubling. Justice Kennedy asked several questions of both sides.

Toward the end of the argument, Chief Justice Roberts asked James Bopp, counsel for WRL, to spell out how the Court could rule that McCain Feingold had been applied unconstitutionally in this case without overturning McConnell. I would predict that is how the case will go: a win for WRL and a severe narrowing of McCain Feingold's applicability without overturning McConnell.

We'll know in 2 months.

I will outline the argument in more detail below for those interested in the flow of the argument.