The Corner

Is the Clock About to Strike Midnight for McCain-Feingold?

From Lyle Denniston at SCOTUSblog on today’s oral argument before the Supreme Court in the Wisconsin Right to Life cases challenging McCain-Feingold’s pre-election blackout on “issue ads”:

With Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia leading an aggressive assault on a key provision of federal campaign finance law, Congress’ latest attempt to reduce the flow of corporate and union money into federal politics appeared to be in trouble in the Supreme Court on Wednesday. While that attempt had an energetic defense from Justices Stephen G. Breyer and David H. Souter, it seemed apparent at the end of an hour of argument that the “blackout” period for “electioneering” ads on radio and TV — if it survived at all — would have far less effect in restraining such ads.

While both Roberts and Scalia seemed quite tempted to vote to overrule a decision of just three years ago upholding the “blackout” provisions on their face, they might well find a way to narrow its scope so significantly that overruling would not be necessary as a practical matter….

Scalia was clearly the commander of the assault on the “blackout.” He commented to Solicitor General Paul D. Clement, who was defending that restriction: “This is the First Amendment. We don’t make people guess when Big Brother is going to cut off their speech; we need a clear First Amendment line, and you’re not giving us one.” Roberts, confronting attorney Seth P. Waxman, representing lawmakers who helped create the “blackout,” soon echoed Scalia by asking rhetorically: “Do we usually place the burden on speakers to prove their speech is allowed?”

In the context of McCain-Feingold, I have a piece up today about why conservatives are not showin’ the love to embattled AG Alberto Gonzales the way liberals did for their oft-embattled AG, Janet Reno.

Most Popular

Law & the Courts

The Second(-Class) Amendment

Editor’s Note: The following is the fourth in a series of articles in which Mr. Yoo and Mr. Phillips will lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track. The first entry ... Read More
World

The Brexit Crisis

After what seem like years of a phony war, British and European Union negotiators finally agreed on the terms of Britain’s departure from the EU earlier this week, and Theresa May announced it in the House of Commons. The deal covers more than 500 pages of legal and bureaucratic prose, and few but the ... Read More
U.S.

Friends of Elmer

Do you know what scares an American outdoorsman more than a grizzly bear? Twitter. In the late summer and early autumn, the hunting world had its eyes on the courts: The Trump administration had issued new guidance that would permit the hunting of brown bears (popularly known as grizzly bears), including in ... Read More
Politics & Policy

Basta La Vista, Baby

Dear Reader (And especially Martha McSally’s dog), As I often note, I increasingly tend to see the political scene as a scripted reality show in which the writers don’t flesh out the dialogue so much as move characters into weird, wacky, confrontational, or embarrassing positions. It’s a lot like The ... Read More