FROM THE NEW YORK TIMES

High Court Hears Arguments on Campaign Finance Law

By DAVID STOUT
WASHINGTON, Sept. 8 — The long-running battle over campaign financing was
fought in the Supreme Court today, getting an extraordinary four-hour
hearing at which the nine justices were alternately told that Congress
either far exceeded its powers with new legislation or was only trying to
clean up an ingrained perception that the political process is corrupt.
Kenneth W. Starr, the former independent counsel who became a household name
during his investigation of President Bill Clinton, told the justices that
the new law "goes too far" and that it "intrudes deeply into the political
life of the nation." Mr. Starr, who was solicitor general during the first
Bush presidency, represents Senator Mitch McConnell, the Kentucky Republican
who is the chief Congressional opponent to the new law.
Not at all, the law's backers responded to Mr. Starr.
Seth P. Waxman, counsel for the sponsors of the law and a former solicitor
general under President Bill Clinton, argued that if the court struck down
the law, as its opponents are asking, it would be surrendering to a "a
counsel of despair" over ever reforming the campaign-finance system.
By the time arguments concluded this afternoon, it seemed that Chief Justice
William H. Rehnquist was skeptical about some portions of the law, and that
Justice Antonin Scalia's already well-known hostility to it had not abated.
"I don't think Congress can willy-nilly regulate any contribution to a
federal campaign," the chief justice said at one point.
He and Justice Sandra Day O'Connor have been regarded as likely swing votes
on the law, although Justice O'Connor's feelings were hard to discern today
— but Justice Scalia's feelings were not. He commented frequently, telling
lawyers at one point that the law would not be any cure-all. "There will be
abuses under this law," he predicted.
Sometimes the justices can confound even seasoned courtwatchers by voting
contrary to expectations built upon interpretations of remarks from the
bench during legal arguments. But some kind of split ruling in this case
seems to be a distinct possibility, given the great complexity of the
campaign-finance law, the fact that portions of it can be left standing
while others are struck down, as opposed to an "all or nothing" outcome, and
finally the skepticism voiced by some of the justices today.
Much of the four-hour argument was devoted to the ban on "soft money"
contributions to the national parties, and to curbs on the transfer of money
from the national parties to their state and local committees.
The solicitor general, Theodore B. Olson, described the law as a right and
logical response to "the relentless pursuit of big contributions" that has
tainted the political process in the public mind.
The law's Senate sponsors, John S. McCain, Republican of Arizona, and
Russell D. Feingold, Democrat of Wisconsin, sat in the audience, listening
to the arguments.
Today's session was extraordinary in several respects. The justices were
sitting in the first special court session since the summer of 1974, when
the Supreme Court heard arguments on whether President Richard M. Nixon
should be compelled to surrender his tape-recordings.
Moreover, the justices devoted quadruple the usual time it allots for an
arguments. With a break for lunch, the justices were hearing eight lawyers
dissect or defend a 61-page statute whose basic ideas have already inspired
countless debates.
In a sense, today's arguments began to form about three decades ago, when
the Watergate scandals brought unsavory disclosures of powerful people and
interest groups giving enormous amounts of money to politicians, and perhaps
wanting something in return.
The excesses of the Watergate era set off such waves of revulsion that
Congress enacted limits in 1974 on how much people could donate to
candidates for federal office, and how much the candidates could spend.
Whether money is viewed as "the mother's milk of politics" (in the words of
Jesse Unruh, onetime Speaker of the California Assembly) or poison, or both,
the issues are far from clear-cut. Foes of the campaign-finance law, led by
Senator McConnell, argue that its restrictions are unjustified and
unconstitutional, violating Americans' rights to free speech and free
association.
Supporters of the law counter that it is necessary to repair widespread
skirting of old regulations, and that turning down the money spigots will
not dry up the parties but rather force them to broaden their bases of
donors.
And, of course, one politician's "fat cat" is another's scrupulous patriot,
and "special interests" can mean big business or big labor, or something
else entirely, depending on one's perspective.
No one really disputes that modern campaigns, especially those for the White
House, are tremendously expensive, and that the well-heeled candidate has a
big advantage.
In 1976 the Supreme Court ruled that, while it was constitutional to curb
donations to candidates, it was an unconstitutional infringement on free
speech to limit what the candidates could actually spend.
This ruling, in Buckley v. Valeo, either gutted the 1974 reform legislation,
or reimposed a degree of sanity, depending on who is arguing. (The case took
its title from Sen. James L. Buckley, a one-term Conservative Party
legislator from New York, and Francis R. Valeo, Secretary of the Senate at
the time.)
The ruling stirred the creative juices of politicians and lawyers. They came
up with subtle ways to let people and organizations give money to benefit
the parties of their choice, without officially giving money to benefit
specific candidates, at least theoretically.
Such unrestricted money from corporations, unions and individuals became
known as "soft money," and many critics said it continued the long-time
contamination of American politics. The flood of soft money continued
unabated into the 1990's.
But in 1995, two senators with not much else in common teamed up to
introduce legislation to really limit the influence of money in politics.
They were Mr. McCain, the Republican, and Mr. Feingold, the Democrat.
Senators McCain and Feingold first introduced their legislation in 1995. But
time and again their bill, and companion legislation in the House, failed to
gain traction.
Mr. McCain and Mr. Feingold (and their chief allies in the House,
Representatives Christopher Shays, Republican of Connecticut, and Martin T.
Meehan, Democrat of Massachusetts) gained crucial support in 2002, following
the collapse of the Enron Corporation and the accompanying spotlight on
corporate shenanigans and political donations by corporate interests.
Campaign-finance legislation finally passed both Houses by comfortable
margins early in 2002, and President Bush signed it.
The legislation's main features were to ban soft money and curb advertising
by unions, corporations and nonprofit groups. Offsetting those limitations
were increases in the amount of "hard money" that individuals could
contribute directly to candidates, to $2,000 from $1,000 per election, with
increases for inflation.
The law took effect after last November's elections. In May, a panel of
three federal judges struck down the law's ban on soft money but said the
parties could not use it to pay for televised "issue" advertisements in the
weeks before Election Day.
The panel stayed its ruling, meaning that the law remains in effect until
the Supreme Court rules. There has been considerable speculation that the
justices would like to decide the case by the time the 2004 campaigns begin
in earnest. The high court could leave some provisions of the
McCain-Feingold law intact while undoing others.