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. The brief states:
[B]ecause BCRA’s restrictions are triggered not merely by primaries and general elections, but also by national conventions in presidential election years, they actually cover the additional 30-plus days before and during each such national convention. Additionally, many broadcasters operate in multi-state media markets and reach 50,000 persons in more than one State. Where those States hold their primaries at different times, as they often do, the restricted periods under BCRA overlap and hence expand the total time during which … electioneering communications are restricted. In operation, the actual period of restriction is ofen more than 120 days in presidential election years, and can rise to over 200 days in the larger multi-State media markets…. including 188 to 217 days in Washington, D.C. media market reaching 2.25 million persons; 196 to 198 days in the Chicago media market … 196 to 198 days in the Philadelphia media market… 184 days in the New York City media market…
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.
