Olson seems to be of the view that a good way to peel off five votes at the court is by berating the justices about the general twirliness of the campaign finance laws, as evidenced by the fact that "since 2003, this court has issued something close to 500 pages of opinions … and 22 separate opinions from the Justices of this Court attempting to figure out what this statute means." A defensive Chief Justice John Roberts observes that the statute gives the court "mandatory appellate jurisdiction"—it has to hear these cases. A tetchy John Paul Stevens snaps: "And maybe those cases presented more difficult issues than this one!"
Note to Olson: Don't tell the justices they are too stupid to understand McCain-Feingold.
Deputy Solicitor General Malcolm Stewart rises to argue the case for the FEC. His job is to persuade the court that they can and should ban 90-minute attack ads. But when Justice Samuel Alito asks whether the government—if it can regulate documentaries—might also regulate a book containing "express advocacy" prior to an election, Stewart agrees that it might.
"That's pretty incredible," splutters Alito. "You think that if—if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?" Not banned, clarifies Stewart. Congress could just "prohibit the use of corporate treasury funds" to publish it. Oh, Malcolm Stewart. Malcolm Stewart. With your Macbeth-y first name and your Macbeth-ier last name. You did not just say the government might engage in a teensy little bit of judicious, narrowly tailored book-banning, did you?
At this point, a horrified Anthony Kennedy gets even paler than his usual pale self: "Is it the Kindle where you can read a book? I take it that's from a satellite. So the existing statute would probably prohibit that under your view? … If this Kindle device where you can read a book which is campaign advocacy, within the 60- to 30-day period, if it comes from a satellite, it can be prohibited under the Constitution and perhaps under this statute?" Again Stewart clarifies that it wouldn't be banned, but a corporation could be barred from using its general treasury funds to publish such a book and would be required to publish it through a PAC. The chief justice seeks to clarify that this would be so even in a 500-page book with only one sentence that contained express advocacy. Stewart cheerfully agrees. The chief justice wonders whether this would apply even "to a sign held up in Lafayette Park saying vote for so-and-so." Stewart doesn't quite say no.
Justice Breyer keeps trying to shake Stewart over his head—like an Etch A Sketch—to erase the noxious image of government-sponsored book banning and get him to stop chatting about issues that are not before the court. But it's too late. Now Souter looks even paler than Kennedy.
For the past few years, the Roberts court has been slowing chipping away at McCain-Feingold, with Justices Roberts and Alito tapping on the brakes as Kennedy, Scalia, and Thomas revved the motor. But it seems to me that all this talk of book banning and government regulation of signs in Lafayette Park is a pretty good way to get all five of them in the mood to run down yet more restrictions on political advertising. And maybe even back up and do it again.