Solicitor General Struggles Before Justices

In oral arguments yesterday, Solicitor General Paul D. Clement ran into trouble as he argued against an exception to a ban on some issue ads by unions and businesses in the weeks before elections.

Clement told the U.S. Supreme Court justices that an exception to the ban on ads mentioning candidates would leave the Bipartisan Campaign Reform Act of 2002 “wide open,” according to the New York Times.

Clement said that ruling for the plaintiffs in this as-applied challenge to the law would be inconsistent with an earlier case upholding the law, McConnell v. Federal Election Commission. But Chief Justice John G. Roberts Jr. told Clement that he was being inconsistent: In an earlier phase of this case, the court ruled that the provision barring corporations and unions from paying for candidate ads could be challenged on a case-by-case basis.

A new majority of the justices, though, seemed receptive to the plaintiffs’ arguments, the Times reports. Justice Sandra Day O’Connor voted to uphold the law in the earlier decision. Justice Samuel A. Alito Jr. replaced her.

Justice Antonin Scalia was particularly skeptical of Clement’s arguments, said in a post yesterday.

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