FROM THE WASHINGTON POST

High Court Hears Arguments in Dispute on Campaign Law
By Charles Lane
Washington Post Staff Writer

The Supreme Court returned early from its summer recess this morning to hear
oral arguments about whether a federal campaign law enacted last year went
too far in restricting what had been nearly unlimited "soft money" donations
to political parties.

The soft money ban was part of an unusual four-hour session -- four weeks
before the court traditionally begins its term -- in a case that could
rewrite the electoral rulebook, even as the 2004 campaign gains momentum.
At issue is the constitutionality of the Bipartisan Campaign Reform Act,
known as BCRA. or the McCain-Feingold law, including its hotly disputed
provisions on soft money and on "issue ads," which air on TV and radio near
election time without explicitly telling people to vote for or against
certain candidates.
The soft money ban was the principal subject during the first half of
today's arguments. Chief Justice William H. Rehnquist, seen by legal experts
as a possible swing vote on many key provisions of the law, asked numerous
questions during the morning, some of which suggested that he was not
prepared to see the law's soft money prohibition as a simple application of
a long-standing federal ban on corporate and union political spending
In his questioning, Rehnquist referred to the court's key 1976 ruling, known
as Buckley v. Valeo, which upheld bans on corporate and union contributions.
"I don't think Buckley supports the proposition that Congress can regulate
willy-nilly any sort of contribution in connection with an election,"
Rehnquist said.
Justice Sandra Day O'Connor, also seen as a potential swing vote on the soft
money issue, was relatively quiet in this morning's questioning, only asking
a few questions. Justices Antonin Scalia, considered a likely opponent of
the new law, and Stephen G. Breyer, viewed as one of the law's most likely
supporters on the court, seemed to be arguing the case in their questioning.
The 2002 law prohibits the national parties and their officers, as well as
federal officeholders and candidates, from raising and spending soft money.
The two parties hauled in nearly $500 million in such donations in the
two-year election cycle that ended in 2000, most of it from large
corporations, labor unions and a relative handful of wealthy individuals.
Lawyers for the plaintiffs, led by Kenneth W. Starr, former Whitewater
independent counsel and solicitor general in the George H.W. Bush
administration -- argued against the ban on behalf of Sen. Mitch McConnell
(R-Ky.), who led a losing battle against BCRA in the Senate. Bobby R.
Burchfield, a Washington lawyer who represents political party clients that
include the Republican National Committee and the California Democratic
Party, also argued against the ban.
The opponents' argument revolved around several key points. First, they
argued that there was only a tenuous connection between the corruption, real
or apparent, of federal officials and the donation of money to state parties
for get-out-the-vote drives and the like. Second, they argued that the ban
is a federal invasion of an area in which the states alone have regulatory
authority. And, third, they argued that draining the parties of soft money
will simply divert the cash to single-issue groups, which, unlike parties,
have to appeal only to a narrow constituency rather than a broader coalition
of interests.
Later in the morning, the law's supporters argued that the soft money
"loophole" was never explicitly created by Congress or the courts, but
rather was opened by FEC regulations after the Supreme Court upheld the ban
on corporate and union contributions in 1976. Though ostensibly aimed at
parties, supporters argued that the donations are obviously given to benefit
particular officials or candidates, in return for special access to the
policymaking process.
Solicitor General Theodore B. Olson defended the soft money ban, speaking
not only for the Federal Election Commission -- the nominal defendant in
most of the cases -- but also symbolizing the support of President Bush, who
reluctantly signed BCRA after the Enron scandal raised questions about the
influence of large corporate donors on his 2000 campaign. Seth P. Waxman, a
Washington attorney who served as solicitor general under President Bill
Clinton, represented the law's authors -- Sens. John McCain (R-Ariz.),
Russell Feingold (D-Wis.), Olympia J. Snowe (R-Maine) and James M. Jeffords
(I-Vt.), as well as Reps. Martin T. Meehan (D-Mass.) and Christopher Shays
(R-Conn.).
After a lunch break, the court spent its remaining two hours of today's
session listening to arguments on BCRA's new regulations on issue ads and
other provisions.
The law defines issue ads, or "electioneering communications," as any radio
or TV ad that runs within 60 days of a general election or 30 days of a
primary and "refers to" a candidate. Before McCain-Feingold, unions and
corporations were free to buy as many such ads as they wanted, paying for
them out of their general funds. Now, they may do so only with money raised
by a separate political action committee, and they are fully subject to
federal contribution limits and disclosure rules.
Floyd Abrams, a leading New York lawyer who specializes in free-speech law,
represented opponents of the provision in this phase of the argument, while
Laurence E. Gold represented the AFL-CIO.
Central to their case was the point that the Supreme Court has, in effect,
already decided the issue. In its 1976 Buckley ruling, the court ruled that
only the purchase of ads that "expressly advocate" the election or defeat of
a candidate, through words such as "elect" or "defeat," may be regulated. As
long as issue ads hew to the right side of that "bright line," opponents of
the law say, corporations and unions should be free to buy as many of them
as they want with their money.
Olson's deputy, Paul D. Clement, joined by Waxman, countered that the court
did not prescribe any particular bright line rule in 1976, but rather held
that there must be a bright line. Clement also sought to convince the court
that the new definition of "electioneering communications" is both
sufficiently clear and more in keeping with political reality than the
previous standard.
The remaining minutes of the afternoon argument session were allocated to
opponents of BCRA's ban on political donations by minors. Designed to
prevent the evasion of contribution limits by wealthy people who give money
to campaigns in their children's names, the provision was attacked on
free-speech grounds by a group of youngsters represented by Jay A. Sekulow
of the American Center for Law and Justice.
Many court-watchers were surprised that the justices decided to devote 10
minutes to that provision, one of the few that the district court
unanimously struck down, rather than give time to representatives of
nonprofit organizations such as the American Civil Liberties Union and the
National Rifle Association, which had asked for time to press their case
against the law's issue-ad provisions.
Not since 1975 has the court undertaken such a wide-ranging political case,
though 2000's Bush v. Gore surely showed that the justices hardly lack
confidence in their ability to decide even the most fateful election-related
issues.
The complicated case is actually 12 lawsuits consolidated into one. With 13
provisions of BCRA (pronounced BICK-ra) under consideration, any one of
which would have been the stuff of a significant Supreme Court decision by
itself, the justices will be challenged to keep their deliberations moving
efficiently. In preparing for the case, each member of the court was
confronted with not only a district court's inconclusive, 1,600-page
opinion, but also with 42 briefs from 12 groups of named litigants and 18
briefs from friends of the court.
Recognizing what was at stake in the legislation, and the certainty that it
would face legal challenge, its authors included a provision that would
speed up judicial review. Their intent was to ensure that questions about
the law's constitutionality would be answered well before the 2004 campaign,
but the three-judge district court panel that originally heard the case
produced its opinion only in May, adding to the time pressure faced by the
Supreme Court. The court's Christmas recess will begin on Dec. 15 -- just
over a month before the Jan. 19 Iowa caucuses.