- The Washington Times - Sunday, July 27, 2003

The extraordinary four hours allocated for the upcoming Supreme Court hearing on new campaign-spending restrictions wasn’t nearly enough to head off guerrilla warfare among the 57 lawyers for challengers seeking time to speak in court.

Collectively they seek three hours and 15 minutes of argument time. The court allotted two hours. Two hours was reserved for federal agencies and members of Congress defending the Bipartisan Campaign Reform Act — the McCain-Feingold law’s complex revision of finance statutes that might govern next year’s presidential and congressional elections.

Among the key contested provisions of the multifaceted law are new contribution limits to candidates, a ban on “soft money” given to political parties, sharp restrictions on the content of issue advertising near elections and a ban on contributions by minors.

Infighting was sparked among challengers during the legal paperwork fired back and forth this month when Kenneth W. Starr, the former independent counsel who was speaking for seven of the 11 groups of appellants, asked the justices to give his coalition of “aligned appellants” the two hours and let others, including the National Rifle Association, make their points in writing.

“To the extent that those plaintiffs have distinctive theories or claims, they have been sufficiently aired in the briefs on the merits,” Mr. Starr told the court on behalf of 34 coalition lawyers whose dozens of clients include Sen. Mitch McConnell, Kentucky Republican, the American Civil Liberties Union, the National Right to Life Committee, the AFL-CIO and the U.S. Chamber of Commerce.

That infuriated NRA attorney Charles J. Cooper and McLean attorney William J. Olson, who represents Rep. Ron Paul, Texas Republican, and a group with related interests. Both challenged Mr. Starr’s assertion to the court that plaintiffs’ attorneys were consulted on timing.

Mr. Cooper and Mr. Olson said in interviews that they were not included in planning any scheduling proposals and contended that Mr. Starr seeks to silence voices that conflict with coalition clients.

“The Paul people are as much opposed to the McConnell position as they are to the government’s position,” Mr. Olson said.

“We have some distinctive arguments the court will not hear unless it hears from us, and the coalition thought if the argument I want to make is made to the court it will be accepted. That’s the argument that McConnell and his lawyers don’t want to be heard,” Mr. Cooper said for the NRA, which he called the nation’s most prolific political voice, accounting for more television time than all other issue-advocacy groups and unions combined.

“The last step before the justices retire to consider their opinions is listening to the lawyers present their final thoughts. If some people are shut out of that process, it invites the court to prejudge what the meritorious arguments are,” Mr. Olson said, adding that Mr. Starr’s group is playing a numbers game, separating like-minded groups to file multiple briefs and gain an advantage at the hearing.

“We saw one appellant group that had 27 or 28 plaintiffs broken up into three groups for the appeal. We … don’t want this multiplying-appellant phenomenon used to manipulate the oral argument in favor of people who are basically favoring the same view,” Mr. Olson said.

“It’s no surprise that the National Association of Broadcasters doesn’t want to have the Paul group challenge the media exception that gives the press special rights to influence elections that ordinary citizens under their theory don’t have,” he said.

A small split in the coalition occurred last week when the Libertarian National Committee filed notice at the Supreme Court that it supports different positions but does not object to granting argument time for Mr. Paul, who ran for president in 1988 under the Libertarian banner.

Mr. Cooper said his would be the only organization to argue against the “sweeping ban on corporate electioneering communications” in advocacy ads by such interest groups as the NRA or Sierra Club. He said the Starr group is more concerned with how business corporations are affected.

“None of these critical issues is likely to be addressed at oral argument by any [groups] save for the NRA,” Mr. Cooper told the court. “The electioneering communication provision of the law silenced the advocacy groups.”

If the justices grant Mr. Starr’s coalition’s request, groups represented by Mr. Olson, Mr. Cooper and by Jay Sekulow, of the American Center for Law and Justice, would be denied a chance to get in the last word at the Sept. 8 hearing.

Attorneys for the government and members of Congress who support the law stayed out of the debate and declined in filings to comment on the fight among their adversaries except to insist that any scheduling changes affect their side.

They “take no position as to the manner in which argument time should be divided among the various groups of plaintiffs,” said Solicitor General Theodore B. Olson, who represents the Federal Election Commission and the Federal Communications Commission.

The solicitor general proposed that he and his deputies have one hour and 20 minutes to argue for federal agencies while former Solicitor General Seth Waxman takes the remaining 40 minutes for six members of Congress, including the law’s sponsors — Sens. John McCain, Arizona Republican, and Russell D. Feingold, Wisconsin Democrat.

Mr. Starr suggested that the court extend the hearing by 30 minutes if it wants to hear other views. William Olson said fairness requires more time than that but said he and others would make the most of it if that is all they get.

During the high court’s summer recess, the question is pending, and a reply is expected before the Sept. 8 hearing. Government briefs are due Aug. 5, and final written replies by those challenging the law must be filed by Aug. 21.

“I’m sure the court will resolve these conflicting motions in time for everybody to get ready,” Mr. Cooper said.

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