There’s been a great deal of commentary already on the WRTL argument heard yesterday (transcript) by the Supreme Court. I posted my initial thoughts here—note that my point “3” got garbled in my rush to write the post before the CATO forum yesterday, and the html has now been corrected). For more blogospheric reaction, here’s Lyle Denniston, Brad Smith, Allison Hayward, and Bob Bauer (his pre-argument comments are here, where he defends the lack of a paper trail in our McConnell betting pool). Via How Appealing (and I, unlike Judge Kozinski, really can’t have breakfast until I’ve seen what Howard has to say), comes a great many links to news stories and commentaries on the argument, including: The News Hour, LA Times, USA Today, Boston Globe, NY Sun, Milwaukee Journal Sentinel, Washington Post, NY Times, McClatchy, Dahlia Lithwick/Slate, Dahlia Lithwick/Day to Day.
Before oral argument, I believed that the replacement of Justice O’Connor with Justice Alito could make a difference on the constitutionality of McCain-Feingold. And that’s certainly the line that Linda Greenhouse (in the NY Times) and Kathleen Sullivan (speaking at CATO) were taking. But in my post yesterday, I said a lot depends on where Kennedy is, and I want to explain more why I have this view.
I have little doubt that if the Justices of the Supreme Court were writing on a clean slate, there would be five Justices that would hold that any limits on corporate (or union) spending violate the First Amendment of the Constitution. But there’s a path dependence issue here. The Justices are not writing on a clean slate, and given this path dependence some Justices likely see an institutional interest not to overrule precedent, especially precedent like McConnell—which took a great deal of Court resources and is so recent. It could look too political, and show a Court that lacks the appropriate “modesty.” I see only two Justices on the Court—Thomas and Scalia—who won’t be worried about that institutional concern.
This means that the controlling votes in the opinion are Justices Kennedy and Alito,and C.J. Roberts. If they are not going to write an opinion that overrules McConnell on the corporate issue, they’ve got to come up with some way of creating an “as applied” exemption. What would that look like? I thought it significant yesterday that Justice Kennedy rejected Jim Bopp’s acontextual test for as-applied challenges. So one outcome is a 7-2 decision setting forth a contextual test, and then sending it back to the lower court to apply the contextual test to the WRTL ads. Or, the Court could apply a contextual test and split 3 ways: 3 Justices (Alito, Kennedy, Roberts) finding the ad is entitled to an as applied exemption under a contextual test; 2 Justices (Thomas and Scalia) concurring in the judgment; and 4 Justices finding under some kind of contextual test that no “as applied” exemption should be created.
While that’s plausible, I have a hard time seeing how Justices applying a contextual test could say that this is not electioneering. Conceivably, they could say that any time there is a “mixed motive” (to both influence an election and legislative action), there should be an exemption. But I can imagine Justice Breyer arguing against that, quite persuasively, that such a test would swallow the rule and the corporate limit will be a dead letter. Still, Justice Alito’s question about a corporation running ads for quite some time suggests some kind of motive test could be in the works. (Richard Briffault and I argued in our amicus brief instead for an effects only test).
Certainly those participating in the election will need some guidance before the election season begins in earnest. As Brian Svoboda pointed out in a comment at the CATO forum, soon BCRA’s provision that requires constitutional challenges to be heard solely by 3 judge courts in DC will expire, and these suits will crop up all over the country. This will be a big mess without some clear standard for as applied challenges articulated by the Supreme Court.