Reaction to Wisconsin Right to Life Arguments

True, a number of far more experienced and dare I say wiser, minds have posted their thoughts on the arguments. I have only the transcript to to work from, but unlike Brad Smith, I can't help myself but to take a guess as to an outcome--I like to.

I think as applied challenges will be allowed on a 5-4 decision with Chief Justice Roberts, and Justices Scalia, Thomas, Alito and Kennedy in the majority. However, I expect a somewhat fractured opinion on the test that will be used. Perhaps only a 4 Justice plurality on one test and Justice Kennedy again sitting astride a fence.

Justices Thomas and Scalia will vote to overrule McConnell on the matter of the electioneering communicatian, but that is not surprising, it was their original opinion. We can expect a scathing opinion from Scalia on this issue again.

But what strikes me most odd about the argument was the completely lack of ability of the Governemnt and the Intervenors to articulate even some semblence of a test other than a "context" test. But that context test also seems more focused on the subjective intent of the speaker, in this case WRTL. Because WRTL and other groups might be predisposed to defeating the candidate mentioned in the futhre ads, that in and of itself would disqualify the ad.

But this intent test ignores some significant political realities, that there may be groups with a primary issue goal who may seek to influence a lawmaker via grassroots activity and advertising and not care one whit, publicly or privately, whether or not the lawmaker is elected or not. They have an issue agenda and want to talk about it.

But a subjective intent prong in any test presents a real difficult matter for the Court. How do you measure intent? Where do you find the intent? What evidence must be presented to show intent? These would be subjects for more litigation

Then for me there is another, more Orwellian overtone. Absent an declaration or some concrete statement of a desire to defeat a lawmaker in an election, will the government seek to have a presumption of intent to defeat, that must be rebutted by the defendant? How do you square that presumption with "innocent until proven guilty?"

The other fator that struck me about the arguments of the Government and intervenors is that the assumption that these electioneering communications would be negative in tone, that is anti-incumbent. The Court seemed to accept that characterization, but wouldn't a positive ad be just as violative of the law if the intent of the sponsor was to elect a lawmaker?

Finally, I hope to post a few comments later about corporate contributions, but that is for another time.