Rick Hasen has a terrific post on yesterday’s argument in WRLT over at Election Law. A tiny taste, but read the whole thing:
Before oral argument, I believed that the replacement of Justice O’Connor with Justice Alito could make a difference on the constitutionality of McCain-Feingold. And that’s certainly the line that Linda Greenhouse (in the NY Times) and Kathleen Sullivan (speaking at CATO) were taking. But in my post yesterday, I said a lot depends on where Kennedy is, and I want to explain more why I have this view.
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Certainly those participating in the election will need some guidance before the election season begins in earnest. As Brian Svoboda pointed out in a comment at the CATO forum, soon BCRA’s provision that requires constitutional challenges to be heard solely by 3 judge courts in DC will expire, and these suits will crop up all over the country. This will be a big mess without some clear standard for as applied challenges articulated by the Supreme Court.