There is a reason that there is a distinction between facial challenge and as-applied challenge. Oversimplified, the McConnell Court upheld BCRA s 203 on a facial challenge. An as-applied challenge was then brought - regulation advocates will say “manufactured”. It takes years to get these to the SCOTUS, and this case came up as an as-applied only. Having been beaten on the facial challenge, McCain-F opponents tried to limit it in an as-applied. You see today the fruits of that years-long effort.
You lose, then you chip away. Then when the tide turns, you go after the facial challenge again. It is the culmination of a great strategy. Jim Bopp was wise to present it this way, and the Justices were correct in ruling as it was presented. Now it will be presented again, in a context that sets the stage for a facial challenge, and I bet that Roberts and Alito both vote to overturn.
Thanks for the explanatory comments for those without formal training.
It was implicitly a facial challenge. Wisconsin Right to Life knew and admitted that they knew the ad, benign as it was, was in violation of M-F. And they did it anyway, because they wanted to challenge the law.
And Roberts and Alito did nothing but further confuse the issue, and allow the continuation of a Bill of Rights with the First Amendment exised out, so that only the benign things, like that little meaningless ad [Feingold had no opponent].
It’s pathetic. All they had to do was follow the lead of Scalia, and they failed.