For the first half-hour of the argument, Justice Alito said nothing, leaning forward in his seat at the end of the bench with an intense expression. He finally intervened during the argument by Seth P. Waxman, who was defending the law on behalf of a group of its Congressional supporters including Senator John McCain, the Arizona Republican who is the other lead sponsor.
What would happen, Justice Alito asked Mr. Waxman, if a group had been running an advertisement about an issue, “and let’s say a particular candidate’s position on the issue is very well known to people who pay attention to public affairs.” Suppose the blackout period established by the law was approaching — 30 days before a primary or 60 days before a general election — “and an important vote is coming up in Congress on that very issue.” Could the group be prohibited from continuing to broadcast the ad?
That would depend on the context, Mr. Waxman replied.
Justice Alito did not appear satisfied. “What do you make of the fact that there are so many groups that say this is really impractical?” he asked. His reference was to the impressive array of ideological strange bedfellows that filed briefs in support of Wisconsin Right to Life’s challenge. These range from the American Civil Liberties Union to the National Rifle Association to the United States Chamber of Commerce to the AFL-CIO.
“I love it!” Mr. Waxman replied energetically, as if he had been waiting for just such a question. He said that although these many groups opposed the law, they were living with it and contenting themselves with running advertisements that advocated their positions on issues without mentioning candidates. The only two as-applied challenges, he noted, had both been brought by Wisconsin Right to Life’s lawyer, James Bopp Jr., who also has another case pending before the court.
Chief Justice Roberts was unimpressed by this line of argument. “I think it’s an important part of their exercise of First Amendment rights to petition their senators and congressmen and to urge others to, as in these ads, contact your senators, contact your congressmen,” he said, adding, “Just because the A.C.L.U. doesn’t do that doesn’t seem particularly pertinent to me.”
ADDED: And here's Dahlia Lithwick:
Clement spends his rebuttal time tussling with Scalia, who seems to love nothing more these days. But when we file out of the courtroom, it doesn't look like Clement's snagged his five votes for the proposition that an ad that quacks and has webbed feet is probably a duck, aka an attack ad in disguise. And, much to Breyer's dismay, if that means gutting the electioneering provision of McCain-Feingold, so be it. When it comes to curbing corruption versus curbing political speech, it looks like speech is the winner today. Which means that there will be an awful lot more vicious, snarling, not to mention expensive, ducks coming to your TV screens next election season.Then bring on the ducks. We will roast them right here to a fine crispy finish.