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Wednesday, January 18, 2006

Law - Some feedback on the oral argument in Wisconsin Right to Life

Wisconsin Right to Life, Inc. v. Federal Election Commission was argued before the U.S. Supreme Court yesterday. See this ILB entry from Monday, Jan. 16th for details.

Michael McGough, Pittsburgh Post-Gazette National Bureau, had this story, headlined "Some Supreme Court justices seem cool to revisiting 'issue ads'". A quote:

WASHINGTON -- Two years after upholding the McCain-Feingold campaign-reform law's limits on broadcast "issue ads" funded by unions and corporations, the Supreme Court was asked yesterday by an anti-abortion group to revisit the issue of whether the curbs violate the First Amendment.

Some justices made clear that they weren't interested.

"Most of us spent the entire summer [of 2003] reading one of the longest appellate opinions we ever saw," Justice Stephen Breyer complained to James Bopp, Jr., a lawyer representing Wisconsin Right to Life, Inc. Mr. Bopp was defending the group's right to air an advertisement about Sen. Russell Feingold, D-Wis., within 60 days of the 2004 election in which Mr. Feingold was seeking another term.

The advertisement urged Mr. Feingold and fellow Wisconsin Democratic Sen. Herb Kohl, who was not up for re-election, not to take part in filibusters of President Bush's judicial nominees.

Mr. Bopp told the court that the ads were not primarily about the election but were a form of lobbying covered by language in the First Amendment protecting the right of citizens "to petition the government for a redress of grievances."

"These ads were at the very core of what a legislative issue ad is," Mr. Bopp said, "and it was directed at both the senators, not just the one running for re-election."

"You have a very good argument," Justice Breyer told Bopp. "But it's an argument we just heard in that case."

Tony Mauro, writing here for the First Amendment Center, reports:
WASHINGTON — It was deja vu all over again at the Supreme Court yesterday, as justices reprised the First Amendment debate over provisions of the federal campaign-finance law that restrict electioneering ads just before an election.

In the 2003 litigation over the law that resulted in the ruling McConnell v. Federal Election Commission, the First Amendment lost, with a majority of the Court upholding the restrictions on their face, even though they restrict speech when it arguably matters most.

Yesterday, presented with a real-life challenge by a Wisconsin antiabortion group that had to yank its advertisements off the air because of the restrictions on electioneering ads, some justices appeared to have second thoughts while others appeared annoyed that the issue was being revisited at all.

And here, from what looks to be a great blog named Skeptic's Eye, by Allison Hayward, "an attorney who writes about campaign finance," is a you-are-there commentary on yesterday's arguments. A sample:
Anyhow, these are my notes from the morning’s argument. Jim Bopp, representing the Wisconsin Right to Life committee, began his presentation, and was able to utter a pronoun and a helping verb before Justice Souter brought him into a back-and-forth about the specifics of the Wisconsin group’s grassroots lobbying ads, and whether they were like some of the ads in the record considered in McConnell, or whether they were sufficiently different to justify the Court taking another look at the electioneering communication ban. Apparently, even though the McConnell case was a facial challenge, the ads produced as trial evidence of Congress’s purpose have now also acquired their own stare decisis status, at least for a few justices. It seemed unfortunate to me that Bopp was pulled into a contest of wits over the specifics of these ads, but that wasn’t within his control and he handled it as well as anyone could.

Posted by Marcia Oddi on January 18, 2006 08:03 PM
Posted to General Law Related