Before oral argument in WRTL begun this morning, the Court ruled 5-4 in two death penalty cases, with Justice Kennedy siding with the four more liberal Justices in striking down capital sentences. Justice Kennedy’s vote could again prove critical in this case.
All three advocates (Paul Clement for the FEC, Seth Waxman for the intervenors, and Jim Bopp for WRTL) did very good jobs, and all three faced aggressive questioning. All the Justices besides Justice Thomas asked questions, with Justices Scalia and Chief Justice Roberts voicing the most skepticism of the law and Justices Souter and Breyer challenging Bopp’s position.
Predicting exactly what the Court will do in the case is very difficult based on the questions, more difficult than I anticipated before argument. That said, here’ where i think things are.
1. There seems little question that a majority of the Court believes some kind of as-applied challenge is appropriate, assuming Mcconnell is not overruled. The Chief suggested that this was already decided in WRTL I. The only question then is what test to apply for as-applied challenges, and who should bear the burden of proof.
2. It seems very unlikely that the Court will use this case as an opportunity to overrule Mcconnell. C.J. Roberts made this plain when he stated that Bopp only made the argument for overruling McConnell on page 62 of his brief, leaving the first 61 pages to argue for the appropriate scope of an as applied challenge. It seems unlikely that there will be more than two Justices (Scalia and Thomas) who will argue that McConnell was wrongly decided and should be overruled. Justice Alito (perhaps joined by Kennedy and the Chief) could well reserve the question for a future case (as Alito did in last year’s Randall decision).
3. If there is a majority on the court to reach the test for as applied challenges, it is not clear exactly what they would look like. Bopp made his case for an acontextual test, one that would look basically at whether the ad contained any magic words about the election (a point Justice Souter hammered home). Justice Breyer’s main message was that adopting the Bopp test would overrule McConnell implicitly. That seemed like a possibility to me before argument, but then Justice Kennedy made a key remark. In response to Bopp’s discussion of the “fighting words” doctrine, Justice Kennedy remarked that fighting words requires context (e.g., was the statement made in a biker’s bar?–wait for the transcript later today to see the exact language). He asked Bopp for any kind of first amendment test that did not examine context. So there could be at least 5 justices (the four remaining members of the Mcconnell majority and Justice Kennedy endorsing a context based test). It is possible, however, that Justice Kennedy would agree with the suggestion of the Chief that if context will be examined, the burden should be on the government to show why an as-applied exemption does not apply.
4. If there is a context-based test, it is not clear whether the court will use an electioneering purpose or effect test. Justice Alito asked about a corporation that had been running ads on an issue before the 60 day period that extend into the period. Clement said this would make for a plausible as-applied challenge, but Justice Scalia pointed out that was a test based on the speaker’s intent. Clement acknowledged that the government would look at intent and effect, but the McCain intervenors want only an effects-based test. (That’s also the position Richard Briffault and I have taken.) I’m not sure where the Court goes on this question. Clement would like the Court to put the question off, noting that 501(c)(3)s may have a plausible case for an as applied challenge because they can’t create a PAC, and running ads against an unopposed candidate might entitle a corporation to an exemption from the PAC requirement (again, that’s the Briffault/Hasen position on this issue.) But the Bopp ad is just like the Jane Doe ads which the Court in McConnell said it was permissible to regulate.
If you want more analysis, the CATO simulcast should begin at 12:15 eastern.