First, this:  Rick Hasen recalls a straw poll of experts on the outcome of McConnell, conducted on the eve of argument, which I recorded and later, when the time for counting the votes had arrived, could not find.  He says I should not be allowed to run elections.  But he misses, of course, the strategic imperative behind my actions.  The vote was not recorded on machine: no hacking was possible and "machine malfunction" was not an excuse.  Without the foil of "paperless" electronic voting, I had to make the voting "paperless."  I did, at the expense of any record of the vote.

     Second, on the case to be argued this morning: there is great worry that the Court will jettison precedent and risk its integrity by stepping back from its decision on McCain-Feingold.  The Washington Post is explicit in its warning about the danger to the Court's "integrity."   For the New York Times, the test is just as stringent for the Court’s respect for "Congress’ authority," but it, too, mentions the need for the Court to honor its "precedents."  Hasen suggests that the Court can undermine its precedent but not frontally:  even a subtle change in a test can make a great deal of jurisprudential difference. 

     How the Court makes law is one ground on which to debate the Court’s obligations here.  But Jim Bopp, in a National Review Online article posted yesterday, makes it clear that this is a large concern on both sides of the question. 

     For critics of the law, the Congress built this law on false pretenses and deceptive tactics.  It is in the nature of speech restrictions that they are not—cannot—be announced by their true name, and the "electioneering communication" prohibition, its detractors will say, is no different.  While Members of Congress revealed their purpose in loosely controlled floor debate, carrying on about their distaste for negative, critical advertising, a more formal presentation, with a more acceptable rationale, was readied for public consumption.  The prohibition was advocated as nothing more than a law enforcement measure, a critical aid to a long-standing policy of limiting corporate and union spending to influence elections.

     As Bopp writes, this was the beginning of a controversial course of advocacy.  Proponents of the restriction wished to ground their proposal in hard empirical evidence that issue advertising was really campaign advertising in disguise.  There ensued the "Buying Time" fracas, in which "studies" were funded on the condition that they yielded the desired results, and the studies’ conclusions were fashioned from the variously interpreted preferences of college students asked to rate their reactions to ads. 

     This bit of funny business was accompanied by some sleight of hand in the making of arguments on the merits.  The Government informed the Court that the provision would be subject to as-applied challenges, but it made this concession, it appears, only to enhance the appeal of its position on facial constitutionality; and as soon it won that argument, it switched positions and denied that any as-applied challenge was intended or available.  And, having reassured all who would listen that the law would not require inquiry into subjective intent, it reversed course on that position as well, and emphasized the importance of a "contextual" inquiry into all facts and circumstances.

     The law’s defenders will object to this account of the origins of the law before the Court today.  But while they might complain that it is overdrawn and entirely too suspicious of the controlling motives, they cannot reasonably deny the truth of the central contentions.  Members did take to the floor to complain about the tone and nature of criticisms broadcast against them.  The "Buying Time" studies were commissioned for advocacy purposes; their methodology and administration were fairly questioned.  The Government did switch its position on the availability of "as applied" constitutional relief.  It did adjust its position on the legal test for a "sham" ad, broadening it to include a wide-ranging examination of subjective "intent" as well as a background assumption of election-influencing "effect." 

     So when the Court is challenged to display "integrity," which is essentially a challenge to honor the way this law was made, much is asked of the Justices.  Speech restrictions should not be lightly enacted; they should not be carelessly—much less disingenuously—constructed and defended.  This, however, is how many see the creation of the unprecedented law that renders illegal any broadcast, paid with corporate or union funds, that even mentions a federal candidate within weeks of an election.

     Admirers of this restriction do not appreciate that when a law like this is put together and argued in this way, it is all the more reasonable for critics to imagine that its true purpose is being concealed.  It is that much more likely that they will believe that this is another instance when, for want of the ability to speak their purposes directly, legislators go indirectly about the business of limiting what others can say about them.

Bob Bauer