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.