The Supreme Court heard arguments in WRTL v. FEC this morning.

      Some clear battlelines seem to have formed.  Some Justices would clearly reject all as applied challenges.  Justices Breyer and Souter made their sympathy for this position fairly plain.  To them, the issue was settled by McConnell. It seemed that Justice Stevens stood with them on this point, though this was less clear.

     Justice Roberts, who was active in challenging the Government, was plainly hostile to the suggestion that as applied challenges were foreclosed. As might be expected, Justice Scalia occupied the same ground, and there was every reason to infer from his questions that Justice Kennedy would vote with them.

     The Government shifted a bit uneasily on the question. At times it emphasized the position that the statute validated by McConnell, imposed a bright line rule incompatible with as applied exceptions. Yet it also rested much of its argument on the specific WRTL ads: to the extent that there is a basis for an as applied exception, Mr. Clement argued for the Government, it does not seem well supported in this case. Justices Breyer and Ginsberg were drawn at least to the side of the argument concerned with--and skeptical of--the type of ads run by WRTL.

     Justice O'Connor asked few questions and great danger awaits any who would use them too much for prediction. Yet she seemed open to the point, stressed by Mr. Bopp, that as applied challenges could not be foreclosed simply because organizations could turn to PAC funds for ads mentioning a specific candidate. And she indicated a favorable view of the position that the case could be decided for WRTL on the question of the availability of an as applied challenge but against it on the particular ads in question.

     Justice Breyer expressed, it is worth noting, some interest in the FEC's use of regulation to exempt some 30- and 60- day candidate references. He seemed to suggest that the FEC could solve the problem with more robust rulemaking in the area. And he also--and this is not a joke--supported  the implied criticism of administrative lethary by asking why the FEC had yet to promulgate rules restricting 527s.

   
Bob Bauer