The Supreme Court today heard arguments in an as-applied challenge to McCain/Feingold’s ban on “sham issue ads” by corporations within 60 days of an election. The oral argument transcript is here.
Preliminary reports suggest that this is one area where the replacement of Sandra Day O’Connor by Samuel Alito may well make a huge difference. Justice Kennedy was already on what I view to be the correct side of the issue — namely, that such ads are core political speech that cannot be banned by Congress. Only Justice O’Connor stood in the way of a correct result the first time around — the good guys (pro-free speech and anti-McCain/Feingold) lost by her one vote. The replacement of O’Connor by Alito may well be critical, then — or so the commentators are saying.
I hope they’re right. Alito was quiet for most of the argument — he pipes up for a few questions around pages 23-25 of the transcript.
Long-time readers know that I consider the BCRA, and in particular the issue-ad bans, as egregiously unconstitutional restrictions of free speech. Hopefully today marks the beginning of a return to sanity on this issue.