- The Washington Times - Sunday, September 7, 2003

Ironies abound in the Supreme Court fight over the McCain-Feingold campaign-finance law, but few seem more pointed than the many interests silenced in a courtroom battle over freedom of speech.

The case, Mitch McConnell v. Federal Election Commission, comes to a head tomorrow when the justices consider the Bipartisan Campaign Reform Act’s (BCRA) ban on so-called “soft money” gifts to political parties, limits on “hard money” donations to candidates, and censorship of issue ads in the weeks before elections.

The hearing is scheduled for four hours and is longer than any other hearing since the last major campaign-finance law was argued there in November 1975.

That hearing resulted two months later in the historic Buckley v. Valeo ruling, which McCain-Feingold opponents contend was decided incorrectly. The Buckley decision said campaign-donation restrictions were justified to remove appearances of corruption from elections.

All sides insist a speedy resolution is needed to decide which laws will govern the presidential and congressional elections next year, for which fund-raising already is under way.

The historic courtroom comfortably housed a distinguished cast for Buckley’s four-hour argument, but it cannot accommodate all who want to attend for the McConnell case, named for the Republican senator from Kentucky who led the challenge from Congress. For instance, lawyers in the case are limited to five guests each, rather than the usual 10.

Limits on who was given time to argue in person have grated most on the parties to the argument. That list is limited to eight of the five dozen or so lawyers representing parties in the case.

Among advocates who will not be heard tomorrow is the National Rifle Association — first to challenge the law it claims will hush its political voice to a whisper. NRA lawyer Charles Cooper portrayed himself as a good loser after the court rejected his argument that Mr. McConnell’s lead counsel, Kenneth W. Starr, would not make a case properly for one of the nation’s most vocal political interest groups.

At the same time, the court set aside 10 minutes for six teenagers as young as age 13 who claim it is unconstitutional to bar them from contributing. Lawyer Jay Sekulow persuaded the justices he needs the time to defend a victory on that issue by the special three-judge District Court that unanimously lifted the ban on contributors too young to vote.

Mr. Starr will take center stage for the first 20 minutes tomorrow, followed by Bobby R. Burchfield, traditionally a Republican lawyer who will have 40 minutes to argue against the law for all major political parties.

Solicitor General Theodore Olson then takes over for 40 minutes to defend the act, assisted by his predecessor in that job, Seth Waxman, who was given 20 minutes in the morning round and 20 minutes more in the afternoon on behalf of the main sponsors, Sens. John McCain, Arizona Republican, and Russell Feingold, Wisconsin Democrat, with Reps. Christopher Shays, Connecticut Republican, and Martin T. Meehan, Massachusetts Democrat.

Leading off the afternoon session will be First Amendment specialist Floyd Abrams for challengers assembled under Mr. McConnell’s banner, followed by Laurence E. Gold, who has 15 minutes on behalf of the AFL-CIO and Mr. Sekulow for Emily Echols, 14; Zachary White, 13; and four other minors.

Deputy Solicitor General Paul D. Clement has 40 minutes to get in the last word for the Justice Department, followed by Mr. Waxman’s second turn.

About 20 outside interests whose lawyers won’t step up to the lectern filed “friend of the court” briefs, making points they believe might get short shrift in the arguments. Those other voices include:

• Twenty investors and corporate leaders calling themselves the Committee for Economic Development, who say business needs relief from being extorted to fill Republican and Democratic coffers.

“Corporations and other large contributors have been goaded into evading FECA’s hard money limits. … [We] seek to highlight the extent to which prominent business leaders — those perceived to benefit the most from the access and influence purchased with soft money — do not wish to continue funding an unrestrained campaign-finance ‘arms race.’”

• Ten states, led by Virginia, argue that Congress hijacked their power to regulate state elections, even when no federal candidates will be on the ballot, as in Virginia this November.

“This court can avoid that thicket by finding state sovereignty — an idea older than contribution limits or the appearance of corruption — has been trespassed by congressional overregulation,” the states contend.

• A separate coalition of 20 states, including Maryland, takes the opposite tack: Challengers’ “invocation of ‘federalism’ in this case is nothing more than a political fig leaf. [They] would foreclose meaningful state innovation across the political landscape of campaign-finance law [and] truly seek to restrict, not to preserve, state authority.”

• A group of former American Civil Liberties Union presidents, executive directors and other ex-officials told the court they share the ACLU’s support for free speech, but said “the opposition of the current leadership of the ACLU to campaign-finance reform in general, and BCRA in particular, is misplaced.”

• Common Cause and AARP asked the court to reject arguments that federal restrictions should not affect state and local elections. “Even if the party’s message in turning out voters is a generic one that promotes the party without mentioning any candidates, … there is no doubt that the voters who are brought to the polls then cast their ballots in federal races as well.”

• A combined filing by the Cato Institute and Institute for Justice attacked the underlying Buckley theory that campaign money is a source of corruption: “This court should begin by recognizing that the value of political speech and expressive association in getting a candidate elected is not an [improper] source of influence over such candidate.”

• House Speaker J. Dennis Hastert, Illinois Republican, said the law’s “purported interest of eliminating an appearance of impropriety” curtails House members’ constitutional rights without achieving its goals.

• A group of 42 former senators and House members said the law was needed to show “the national government is not for sale to the highest bidder.”

• Former RNC Finance Director Rodney A. Smith said his research for a forthcoming book shows that federal control has the perverse effect of “further heightening” the role of money in elections and makes rich candidates and incumbents “all but unbeatable.”

• The Center for Governmental Studies, which drafts model laws for campaign finance, supports restrictions on “electioneering communications” within 30 or 60 days of an election.

• A group of 22 “international experts” submitted a long list of foreign decisions and laws to help the court pull the U.S. system “back from the fringe of international practice.”

• The American Civil Rights Union’s policy board, in its brief, said setting variable contribution limits for senatorial candidates who face wealthy self-financed opponents violates the Constitution. The board includes U.S. Circuit Judge Robert Bork, who helped defend the Federal Election Commission in the 1975 Buckley case.

• Former Sen. Fred Thompson, Tennessee Republican, said the Senate Governmental Affairs Committee hearings he conducted in 1997-98 discovered loopholes that provided a rationale for BCRA.

• The Center for Responsive Politics, which tracks political spending, said soft money is “directly related to federal election campaigns and the policy agendas of individuals, industries and groups [that] are focused on decisions made by members of Congress and the occupant of the White House.”


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