Federal Election Commission v. Wisconsin Right to Life, Inc. - Oral Argument - April 25, 2007

Federal Election Commission v. Wisconsin Right to Life, Inc.

Media for Federal Election Commission v. Wisconsin Right to Life, Inc.

Audio Transcription for Opinion Announcement - June 25, 2007 in Federal Election Commission v. Wisconsin Right to Life, Inc.

Audio Transcription for Oral Argument - April 25, 2007 in Federal Election Commission v. Wisconsin Right to Life, Inc.

John G. Roberts, Jr.:

We'll hear argument first this morning in Case 06-969, Federal Election Commission versus Wisconsin Right to Life, and Case 06-970, Senator McCain versus Wisconsin Right to Life.

General Clement.

Paul D. Clement:

Mr. Chief Justice, and may it please the Court:

In McConnell against FEC this Court upheld Title II's restrictions on electioneering communications by unions and corporations against facial attack.

In doing so, this Court reviewed a voluminous record and concluded that the vast majority of the ads that had been run in previous cycles and came within the statutory definition could constitutionally be regulated by Congress.

Accordingly, this Court rejected the overbreadth challenge and upheld the statute on it face.

To be sure, the last time this case was before the Court the Court made clear that nothing in McConnell foreclosed an opportunity for as-applied challenges to the statute and the Court remanded the case for that purpose.

But to be consistent with McConnell's overbreadth decision, any as-applied challenge cannot have the effect of calling into question a substantial percentage of the statute's applications.

Yet the district court's decision below has precisely that forbidden effect.

There is nothing atypical about the three ads that are before this Court.

Indeed, they closely resemble the Jane Doe hypothetical ads that this Court identified at page 127 as the prototype of ads that, although they took the form of issue ads, nonetheless were functionally equivalent to express advocacy.

Antonin Scalia:

Maybe we were wrong last time.

Paul D. Clement:

Well, Justice Scalia, I don't think you were wrong, and I suppose that obviously you thought the rest of the Court was wrong in McConnell, and if the Court wants to reconsider that decision... I mean, that's an option the Court can take in the appropriate case.

I would suggest that this is not the appropriate case for a number of reasons, not the least of which is that I think it was briefed in this case really as something of an afterthought, not as a principal focus of the briefing.

In the McConnell case this Court, as you well remember, had an unbelievably exhaustive record before it in making a judgment about the facial constitutionality of the law.

Antonin Scalia:

Well, we didn't have a concrete case such as this one, in which the assertions of the other side are very appealing as far as the rights of citizens to band together for an issue ad, even an issue ad that names somebody who's up for election within, within 90 days.

We didn't that have appealing case before us.

Now that we have it before us and now that you tell us that this is a typical case, maybe we were wrong about the overbreadth challenge before.

Paul D. Clement:

With respect, I don't think you were.

And although you didn't have this case before you, you had many, many concrete cases before you that are really indistinguishable from this case.

You had the--

John G. Roberts, Jr.:

How are we supposed to decide whether this case... if you think it's important to our resolution, how are we supposed to decide whether this particular case is typical or not?

Paul D. Clement:

--Well, I guess it's hard for me to say how you would decide whether it's typical.

I'm not sure that's the question.

John G. Roberts, Jr.:

I think it's very hard to determine.

Therefore, I think it's hard to determine in the abstract whether its inconsistent with the conclusion in McConnell that a vast majority of the cases would not be covered or if it's inconsistent with it.

Paul D. Clement:

Well, Mr. Chief Justice, let me try to come at it this way, which is to say I would have thought that if you're not going to overturn McConnell, you're just going to apply it and say, well, what kind of as-applied challenges are left, I would have thought that what you would have in mind is ads that had an identifiable characteristic that marked them as being outside of the mainstream and somehow different from most of the ads.

And so--

John G. Roberts, Jr.:

That gets back to my same question: How do we know that this is or is not outside the mainstream.

We have just the three ads that are at issue here.