Something about this has the effect of shooting Scalia out of a cannon. "This is the First Amendment!" he bellows. "We don't make people guess whether their speech is going to be allowed by Big Brother or not!"
Former Solicitor General Seth Waxman has 10 minutes to defend the statute on John McCain's behalf. He proposes a test that would simply measure whether an ad has an "electioneering purpose." If it does, it's a duck. Roberts is unimpressed. "Do we usually place the burden, when we're applying strict scrutiny, on the challenger to prove that they're allowed to speak?" he asks. Rhetorically, of course. Justice Samuel Alito, who again has the power to flip O'Connor's vote from McConnell, wonders what the useful empirical test would be, and why it is that "so many advocacy groups say this law is impractical?"
James Bopp represents WRTL, and he seems to enrage justices Breyer and David Souter almost as effectively as his opponents infuriated Scalia and Roberts. Bopp keeps using the words "grassroots lobbying ads," and so Breyer jumps him. He wants to know what to make of the WRTL Web site—the one referred to in the ads that don't stop at politely saying, "Phone the senator." The Web site more candidly says, "Defeat him, defeat him, defeat him!" Breyer cries. "Sounds like they have defeat in mind." He starts jamming Bopp on whether he read the "1,000-page opinion below," which he says took him a whole week to read. Finally, Breyer asks whether Bopp wants the whole provision struck down. Scalia reminds Bopp that he does. Bopp says that if "there is no workable test," then heck yeah, strike it down.
Souter tells Bopp that if the test is merely to look at the text—the "four corners" of the ad—then it would inevitably "ignore the context. How can we tell what something means without the context?" He goes on: "You knew the position of Senator Feingold in these advertisements, and the people in your state knew."
Bopp replies that "there is absolutely no evidence that anyone in Wisconsin knew [Feingold's] position on the filibuster." Souter explodes: "Because they're dumb?"
Bopp replies that polls show that the majority of Americans don't even know who the vice president is. At which Souter sneers (sneers—I swear it): "So your position is that we ignore context because the voters aren't smart enough to have a context?" Kennedy makes a plea for considering context too, but it appears to be chiefly an effort to get the words "biker bar" into the transcript.
Justice John Paul Stevens asks Bopp whether he is seriously trying to convince the court that the purpose of the WRTL ads was to get Feingold to "change his position on filibusters." Bopp says yes. And that, moreover, Sen. Herb Kohl did change his position on filibusters. "At least people should have the opportunity to engage in grassroots lobbying," he adds.
"Is that called democracy?" intones Kennedy. Sounding like Thomas Jefferson at debate camp. Bopp replies that it is, indeed, democracy.
Bopp offers an alternative test for an illegitimate issue ad; essentially whether it contains some of the magic words that would clearly turn it into electioneering. Stevens gets Bopp to stumble when he asks what happens when the permissible issue ad steers viewers to a Web site that uses those "magic words"? Bopp isn't certain.
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.