As Marty Lederman has noted, Jim Bopp’s request to file an oversized brief in the WRTL case (granted by the Chief Justice to a 70 page brief) includes a request for more pages to brief the question whether the Supreme Court’s recent decision in McConnell v. FEC, upholding the McCain-Feingold law, should be reconsidered. On this point, the motion (at page 3) suggests that the FEC and the congressional intervenors surprisingly put the question of McConnell’s vitality at issue by arguing that the kinds of ads WRTL sought to run were at the core of what Congress was trying to regulate in BCRA (in this case, by requiring that such ads run by corporations be paid for with PAC funds, not treasury funds).
I don’t think this attempt to get the Court to consider the vitality of McConnell is going to fly. As Marty, Richard Briffault, David Ettinger and I noted in this pro bono amicus brief filed in the WRTL case (at footnote 3): “The general constitutionality of a PAC requirement for corporate election-related spending was not litigated below and thus is not at issue here. See Randall v. Sorrell, 126 S.Ct. 2479, 2500-01 (2006) (Alito, J., concurring) (refusing to reconsider campaign finance precedent in Buckley, 424 U.S. 1, because issue was not properly before the Court). The only question in this case is whether Wisconsin Right to Life, Inc. (WRTL) is entitled to an as-applied exemption from the requirement for three advertisements it sought to broadcast with general treasury funds near the 2004 elections.”
The Bopp motion makes it sound as though the argument of the FEC and congressional intervenors is a surprise, thus explaining why the issue was never raised below. But that’s ridiculous. Not only have the FEC and intervenors been arguing from the start that these ads are the very type of ads that should be subject to the corporate PAC requirement, but the three-judge panel, in its opinion the first time it heard the WRTL case noted the issue (p. 6):

The facts suggest that WRTL’s advertisements may fit the very type of activity McConnell found Congress had a compelling interest in regulating…In McConnell, the Court voice the suspcision of corporate funding of broadcast advertising just before an election blackout season because such broadcast advertisements “will often convey [a] message of support or opposition regarding candidates… Here WRTL and WRTL’s PAC used print and electronic media to publicize its filibuster messate–a camapgin issue–during the months prior to the electoioneering blacout period, and only as the blackout period approached did WRTL switch to broadcase media….This followed the PAC endorsing opponents seeking to unseat a candidate whom WRTL names in its broadcast advertising, and the PAC announcing as a priority “send Feingold packing.”

From the beginning WRTL litigated this case as one about whether its ads constitute “genuine issue advocacy” or “grassroots lobbying.” It was never an attack seeking to overturn McConnell. I don’t expect the Court to view it as one now.