Oral argument can function as a mirror in which observers can see whatever they choose. With that qualification in mind, it is interesting to review the transcript of yesterday’s argument in Wisconsin Right to Life.  There are high-points, moments when the critical issues were sharply joined or when a Justice or counsel marked out distinctive positions.

     The Challenge of Applying “As Applied” Challenges?  The challenge for Government and McCain counsel was to allow for as-applied challenges while implying that, as a practical matter, these would have to be rare—exceedingly so—for the law to survive.  Clement for the US, Tr. at 8  The Chief Justice seized on the ambivalence here, and he was joined by Scalia:  they sensed that the Government could not clearly say—and did not believe—that these challenges could be maintained without putting the law facially into questions.  CJ Roberts, Tr. at 9.  Hence, the difficulty with which counsel for the Government and the McCain appellants articulated a workable, clearly stated version of a test for distinguishing sham from genuine issue ads (see below). 

     This was not surprising.  After all, in the first phase of the case, defenders of the law strenuously maintained that it did not allow any as applied challenges.  This was an acknowledgement that any as applied exceptions might fatally weaken the entire structure.  Now, with no choice left but to give lip service to the possibility of as applied relief, counsel for the Government and the McCain appellants were plainly ill at ease:  they could not confidently reconcile the goals of the provision with the exceptions they are now required to respect and define.

     Breyer’s Defense.  More surprising was Justice Breyer’s performance.  The Skeptic writes that he did, on balance, well, but this does not come across in the transcript.  He complains that he is being asked to sign McCain-Feingold’s death warrant, which is better drama than enlightening analysis.  Tr. at 32, 33.  As a pass at explaining why the preservation of this law is a jurisprudential objective of independent significance, he indicates that McConnell was decided only a short while ago.  Tr. at 33.  But to this argument, the answer that suggests itself is “so what?”  Better an adjustment now to the recently issued decision, to meet First Amendment demands, than to allow it to establish the status of “established precedent” better armed against legitimate free speech claims.  And Breyer takes peculiar pride in the 1,000 page record in the case, Tr. at 31, without seeming to appreciate that speech rights that depend, case by case, on the compilation of a voluminous record are frail indeed.

     “Effective Speech.”  On two occasions, Paul Clement for the United States conceded that speech before an election may be all the more effective because of that timing—but not necessarily because of an intention, primary or otherwise of influencing elections. 

JUSTICE KENNEDY:  We all—we all know—maybe—I think, I think it’s accepted, that the public only tunes in to the political dialogue shortly before the election.  That’s time in which you—in which you reach the public….

GENERAL CLEMENT:  Well, Justice Kennedy, I don’t see—you may be right that certainly people do tend to focus on issues in the context of an election.

Tr. at 14-15.

     And again:

JUSTICE SCALIA:  The Senator who is, who is at risk is likely, is likely to listen.  The Senator who has a safe seat is not.

GENERAL CLEMENT:  No doubt that’s true.

Tr. at 17.

     These are meaningful concessions, helpful to the claim that even if a party might hope for an election-related impact, this might not be the sole objective the speaker is pursuing.  The speech could have the aim of influencing both voter and candidate:  and if the voters don’t change the candidate, the speech and the pressure it has generated could well have the effect of changing the positions of the candidate.  J. Scalia, Tr. at 18.  Asked by Breyer whether this ever happened, Jim Bopp for Wisconsin Right Life answered that, yes, it did:  in the case of Senator Kohl, on the very issue of the filibuster addressed by the ads.  Bopp for Wisconsin Right to Life, Tr. 41-42.

     The “Test”:  The skeptical Justices pressed hard for the test useful in separating the sham from the genuine issue ads.  Counsel for the Government and McCain made, collectively, different efforts, some more concrete than others, but the impression left was largely one of uncertainty and confusion.

      First, there was the argument based on “similarity.”  The ads before the Court—and others ads to be litigated in the future—were to be placed alongside the ones considered in McConnell and pronounced either like or unlike them.  Tr. at 7, 28.  Absent from this test is anything resembling the prongs or component parts of the test.  It seems to call for feel or intuition:  it is an example of a skill defined as more art than science.

     Second, there was the test elaborated by McCain counsel Seth Waxman, who phrased it as one that focuses on an ad’s specific “characteristics,” such that a “reasonable voter in the targeted electorate” would (or would not) understand the ad to “promote, attack, support, or oppose” the candidate.  Waxman for McCain, et al., Tr. at 21-22, 23.  “The acronym is PASO,” he informed the Court, referring to a statutory tem that he imported from other, unrelated sections of McCain Feingold.  Tr. at 23.  But when discussing the ad in question, Waxman then returned to the argument based on similarity, arguing that it clearly fit within the “paradigm of an electioneering communication” cited by the McConnell Court, the “Jane Doe” ad.  The ad before the Court was, he stated, “materially indistinguishable from the Jane Doe ad.”  Tr. at 28. 

      Finally, no progress was made in clarifying the Government and McCain appellants' position on the question of whether the statute required an inquiry into subjective intent.  Counsel seemed to argue both that it did and that it didn’t.  It was not clear, for example, whether consideration of the “context” of an ad—not only its plain words—was necessary for the clarification of “effect” or of “intent.”  Justice Souter tried to help the appellants by arguing for context as essential to discovering the “meaning” of words as the audience would hear them, not as the speaker intended them.  Tr. at 35-36.  For all his work, however, Paul Clement ended his argument by explicitly stating that “intent” was relevant.  Tr. at 56.

     But a Good Day for 501(c)s.  Wishing to give some example of a “better” as applied challenge, counsel cited 501(c)s unable by law to establish a PAC.  Clement for the U.S., Tr. at 12, 13-14.  This was a sensible offer; and it represents a fairly significant advance for the position of the (c)(3)s.  After all, the attempt to carve a regulatory exemption for these tax-exempts met with resistance from the reform community.  For 501(c)(3)s, as of yesterday, times may have changed and their fortunes may have improved. 

     Perhaps, also, other organizations, and we will know by the end of June.  They might reason for hope as they read a question framed by Justice Kennedy, in response to James Bopp’s statement that “people should have the opportunity to engage in grassroots lobbying.”  The Justice asked:  “Is that called democracy?”  Tr. at 42. 

Bob Bauer