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April 25, 2007

McCain-Feingold's "Blackout Period" For Issue Ads in Supreme Jeopardy?

Over at SCOTUSblog, a report on oral arguments about the constitutionality of the provision.

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 (Scalia commented that "Maybe we were wrong last time"), they might well find a way to narrow its scope so significantly that overruling would not be necessary as a practical matter. Roberts, for example, sought to explore ways to avoid an overruling of the 2003 decision in McConnell v. Federal Election Commission as it applied to the "blackout." It would take five votes to undo that ruling and, given the likely lineup of the Court, a fifth vote could come only from Justice Sanuel A. Alito, Jr., who did not display any enthusiasm for that outcome on Wednesday.

The trouble is, while striking down this provision may be a victory for free speech, it's also a victory for liberal advocacy groups, which greatly outspend conservative groups in this area.

Better to strike it down, though, of course. Conservatives just have to get as good at loopholing the laws as liberals -- fighting speech with more speech and all that.

Via Andrew "Pretty In Pink" McCarthy at the Corner.


Speaking of McCain-Feingold: K-Lo snarks about the "breaking news" that John McCain is running for President.

He announced today.

Who knew he was even considering such a thing?

Reaction: Dan Riehl says that McCain's announcement reminded him of Reagan... but not in a good way.


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