At the close of Wednesday’s oral argument in FEC v. Wisconsin Right to Life, Justice Alito and Justice Scalia questioned Solicitor General Paul Clement about the time period of the "electioneering communications" ban in presidential elections. Justice Scalia noted that it could be upwards of 200 days.
We were flattered, as this line of questioning draws directly from the amicus brief filed by CCP, along with the Cato Institute, the Institute for Justice, and the Reason Foundation. It draws on a forthcoming article in the Stanford Law & Policy Review by CCP Chairman Bradley Smith and Jason Owen, Boundary Based Restrictions in Unbounded Broadcast Media Markets: McConnell v. FEC’s Underinclusive Overbreadth Analysis, __ Stan. L. & Pol’y Rev. __ (forthcoming 2007). While the article was also cited in the brief of appellees and the amicus brief of Senator Mitch McConnell, the argument was first raised and most developed in the CCP brief.
We also note that Solicitor General Paul Clement got it wrong – responding to Justices Alito and Scalia, Clement denied that the law could black out broadcast stations in multimedia markets for more than 90 days in presidential elections. There is no real way to respond to this other than to point out that the Solicitor General is simply wrong, as a matter of fact, not opinion or interpretation. Read the article, which will be linked at this site as soon as it is available on line.