I am now in Washington, to attend the oral argument in the Wisconsin Right to Life case being heard tomorrow morning at the Supreme Court. After the argument, I’ll be blogging some comments and then appearing on a panel at CATO talking about the argument. You should be able to watch a live webcast of the CATO event here. In the meantime, you can read argument previews from the Washington Post, USA Today, the Politico, the Christian Science Monitor, the NY Sun, and Lyle Denniston at SCOTUSblog. Jim Bopp, arguing the case for WRTL, offers commentary here at National Review. Sen. McConnell weighs in with this WSJ oped (commented on by Bob Bauer), and my earlier Legal Times commentary is here. You can find all the briefs in the case through this link.
Here are some thoughts before oral argument. Things are so much different than when the Court heard the arguments in McConnell v. FEC in 2003. Before that argument, we had a big dinner, with academics and lawyers on both sides of the BCRA issue. We all made predictions about how the Court would vote (which Bob Bauer wrote down and later lost—don’t let him administer any elections!) and there was great anticipation in the air. The Court scheduled a special September session to go both morning and afternoon. It released the oral argument tapes immediately after argument. The sense of drama was palpable when Chief Justice Rehnquist said during oral argument that he thought his vote in Austin upholding limits on corporate campaign financing was a mistake. It turned out that only Justice O’Connor’s switch of positions on the Austin question saved the constitutionality of one of BCRA’s biggest provisions. The Court in December 2003 released one of the longest sets of opinions in Supreme Court history, upholding BCRA’s major provisions by a 5-4 vote.
Though election law junkies and the campaign finance bar are paying very close attention to WRTL, the case is garnering much less attention among the public. In part, this may be simply the complexity of the issues presented. It is hard to get across to readers the “as applied” nature of WRTL’s challenge, and the odd procedural posture of the case. But there is something that everyone can understand: the Court personnel have changed in the three years since McConnell, and it could well have very serious consequences for the future of campaign finance regulation in this country. Justice Alito, many of us are guessing, will be far more skeptical of campaign finance regulation than Justice O’Connor was (at least in her McConnell incarnation). Assuming Chief Justice Roberts is also skeptical (a fair bet, given his sharp comments at oral argument during WRTL I), there could well be a 5-justice majority ready to move toward campaign finance deregulation.
The Court could do so in many ways. It could agree with Bopp’s arguments, and essentially craft a “loophole” in the electioneering communications provisions that one could drive a truck through. It could adopt the more subtle argument in Kathleen Sullivan’s excelent brief for Focus on the Family and other organizations: giving greater rights to non-profit corporations to engage in political speech even if, as in the case of WRTL, the non-profit takes donations of corporate money. The Court could expand the MCFL exemption. Or it could craft a narrow exemption, as Richard Briffault and I have advocated, one that would consider WRTL’s ads to be within the electioneering communications provisions but exempt other broadcast ads. There are many other possiblities, including a finding of mootness (but this issue will be a recurring one, and the Court may think it better to resolve it sooner rather than later).
Chief Justice Roberts strikes me as a very patient individual. Even if he has strong deregulationist views like those of Justices Thomas and Scalia, I could see him not moving in a bold direction in this case. But as in the abortion case decided last week the Court can make a great deal of jurisprudential change through subtle changes in tests, without overruling a single case. We’ll have a better sense if that strategy seems likely after oral argument tomorrow morning. The case has the potential to be a blockbuster, despite the lack of McConnell-like buzz.