Listen to Dahlia Lithwick discuss this topic on NPR'sDay to Day.
Paul Clement takes over defending the statute and he, unlike Olson, seems to have hypnotized himself into really liking campaign-finance reform. Like Olson's, much of his presentation consists of a rather protracted conversation with Scalia. Like Olson's, his answers to a good many of the court's questions are: "Because you said so." But unlike Olson, he quotes Austin instead of Buckley back at them. Scalia rushes to point out that he was in the dissent in Austin. Clement is forced to remind him, rather tartly, that Austin is still the law.
There is a final burst of anxiety among the brethren over the fact that the law bars corporations and unions and rich people from advocating for a candidate, but not the media. I confess that at this point I am slowly replaying the American Idol finals in my head, as Seth Waxman is left to finish making the case for BCRA; something he does elegantly—but for his confession that he doesn't much care how the case comes out.
At the end of the unprecedented four-hour session, it appears that, yet again, we'll be facing either a 5-4 or 4-4-1 decision, with—you guessed it—Sandra "Go Ahead, Make My" Day O'Connor as the deciding vote.
I suspect she'll worry more that the system is hopelessly and depressingly corrupt than about the free speech rights that can readily be redirected either into hard money or genuine issue ads. But she was sphynxlike today; speaking almost not at all. Still, I'm thinking she'd be delighted about the lunchtime female bonding in the first-floor ladies room.