January 17, 2006

"Do Corporations Have a Constitutional Right to Run 'Genuine Issue Ads' Before Elections Despite McCain-Feingold?"

You can now access here the preview I have written for the ABA's Supreme Court Previews on the Wisconsin Right to Life v. FEC case. Republished with permission of the ABA. A snippet:

    This case could turn out to be very significant. It is the first foray into the campaign finance area by the Roberts Court, with the second opportunity coming in February with a look at the constitutionality of Vermont's candidate spending limits. (Randall v. Sorrell (Nos. 04-1528, 04-1530, and 04-1697.) Coupled with the Court's recent decision to hear the Texas redistricting cases in March, the Court continues to handle high-profile election law cases even in the wake of Bush v. Gore.

    The case is being argued just a few days before the expected scheduled vote on the nomination of Judge Samuel Alito to fill Justice O'Connor's seat. Justice O'Connor is expected to be on the bench for the argument in WRTL, but if Judge Alito is confirmed she will not be on the Court for a decision. Justice O'Connor was the crucial fifth vote in McConnell, upholding the limits on corporate and union spending in federal elections. With her departure, it would not be surprising for the Court to split 4-4 on some of the issues in WRTL, which would require reargument of the case with the new justice on the bench. If Chief Justice Roberts and Justice O'Connor's replacement side with Justices Kennedy, Scalia, and Thomas in these cases, there could be a new Court majority to hold that the First Amendment trumps many of the campaign finance laws that the Supreme Court had upheld in recent years. WRTL may not be the case where a Court majority reverses McConnell on the constitutionality of limits on corporate and union spending in the political process, but it could show a shift in the Court's direction toward that result.

    If the Court allows plaintiffs to bring as-applied challenges, lower courts will pay a great deal of attention to the test that the Court uses to separate 'genuine issue ads' from electioneering ads. Fact-specific, multifactor tests could leave the FEC and lower courts with a flood of election-time requests for exemptions from the electioneering communications provisions of BCRA. The Court will likely be considering the administrability of any rule it announces when it decides how to handle this appeal.

You can find additional previews of the case from the Christian Science Monitor, NPR, and Ned Foley.

I would like to hear about oral argument in the case from those who attended. Please leave a comment on the blog or send me an e-mail that I can post.
UPDATE Bob Bauer reports from oral argument. It is quite an interesting report, leaving open the possibility that this Court divides 4-4 not counting Justice O'Connor, and the case is reargued for a new Justice Alito.

Posted by Rick Hasen at January 17, 2006 08:36 AM