Today, as Scott noted earlier, the Supreme Court heard oral argument in the Wisconsin Right to Life case, which arises from the Bipartisan Campaign Reform Act of 2002 (the McCain-Feingold bill). At issue was the part of McCain-Feingold that “blacks out” advertisements made by anyone other than the campaigns in the final six weeks of the election season. Scott linked to this account of the argument by Allison Hayward.

Allison is a leading critic of McCain-Feingold. An even more prominent critic, Senator Mitch McConnell, also attended the argument and also liked what he heard. His optimism was apparent in a report he sent to various bloggers. Like Hayward, McConnell seemed particularly pleased with the questioning by Justice Alito. He noted:

Justice Alito recognized the massive breadth of this provision during a presidential election year – namely a rolling ban from coast to coast during the year. Grassroots groups could never run a nationwide ad on CNN or ESPN as it would violate the law in at least one state.

The Scotus blog (full disclosure -- it's now presented by my law firm) takes no official position on the merits. But the report filed by Lyle Denniston also concludes that the "blackout" provision appears to be in serious trouble. According to Denniston, "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."

To comment on this post, go here.

Posted by Paul at 09:40 PM  |    |