From the New York Times

Excerpts From Supreme Court Arguments on the Campaign Finance Law
Following are excerpts from arguments yesterday before the Supreme Court about the new campaign finance law, the Bipartisan Campaign Reform Act, or B.C.R.A., as recorded by the Alderson Reporting Company. Arguing against the law were Kenneth W. Starr and Floyd Abrams; arguing for it were Solicitor General Theodore B. Olson and Seth P. Waxman.
Opposed to the Law
MR. STARR Title 1 of B.C.R.A., along with Section 213 intrudes deeply into the political life of the nation, and does so in a way that not even the most ardently nationalist of the founding generation would have countenanced. The upshot is not only a Federal intrusion into state and local activity at the grassroots level, but a significant diminution in speech and associational activity by parties, activity that lies at the very core of the First Amendment. B.C.R.A.'s practical effect is to shift resources and power away from political parties which have long been a source of stability for the nation, and in the direction of First Amendment-protected, but at times ideologically razor-sharp interest groups.
B.C.R.A., in a word, goes too far. There were other ways before Congress that Congress could have employed most relevantly. 6 But Congress chose not to do this. It rather, in 323A, chose to ban, ban, not limit, but ban, but also to regulate relationships and associations among the different levels of the parties. In 323B, Congress went so far as to regulate state and local political activity that is at the most grassroots level and is documented lavishly in this record . . .
JUSTICE JOHN PAUL STEVENS May I ask you if you are talking about the right to speak in association with others, does that apply to individuals or does a group have a right to speak in association with other groups?
MR. STARR This — I believe it does, Your Honor, but this Court, I don't think has authoritatively answered that question.
JUSTICE STEPHEN G. BREYER I gathered
the statute was passed because, let's call him Joe Wealthy, wants to write a check for $10 million to help his favorite candidate Smith get elected. And they figured out a way, who they is is named in the lower court opinion, but we'll just say they. They figured out a way despite the prior law to do it. It would pay for Get Out the Vote, it would pay for voter registration, and it would pay for issue ads which didn't say vote for Smith. What they said was Jones, his opponent, is a real rat, go tell him what you think of him, O.K.
I mean, all right, now, that was the problem. And the solution is to say one, all pennies spent by the Federal committee are Federal, and though the limitations of $50,000 a year in total apply. Two, the state is home free, does anything it wants where there are only state candidates on the ballot, that where there are state and Federal both on the ballot, we will allocate, and then it sets up a highly complex system of allocation, so I think the question that I heard was, if you thought the prior system of allocation which happened to be 60 percent Fed, 40 percent state or a ratio for the state committee, depending on the number of state offices versus Federal offices.
If you felt that was constitutional, then why is this new allocation unconstitutional, because as I read through it, it looked like the basic problem is when you get a voter to the polls, you have to have him there to vote for a state candidate, you have to have him there for a Federal candidate, and we are going to allocate the cost of getting him there between hard money, Levin money and maybe some other money.
MR. STARR There comes a point, Your Honor, where Congress goes too far in failing to accommodate the state interest. There is in short a necessary, under this Court's jurisprudence, and we believe anchored in the Federal Elections Clause for Congress to assiduously be mindful of displacing state law, and that is what has been done here by virtue of essentially not even trying to effect an allocation, but rather simply saying, including in context where the flow of funds from the national party to the state or local party is in an off-year election. The value that we would have left up to the Court is that of congruence, proportionality.
This goes much too far and Congress could have calibrated much more carefully.
For the Law
MR. OLSON The issues the Court considers today, every single one of them in connection with Title I, are not new.

For a century, with the overwhelming support of the public, Congress has struggled to curb the corrupting influence of corporate, union and large, unregulated contributions in Federal elections. Time and time again, this Court has agreed that achievement of that goal is critical to avoid erosion of public confidence in representative government to — and I'm using the Court's words — to a disastrous extent.
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But concentrated wealth is nothing if not creative. As this Court has observed, the history of campaign finance reform has been a cycle of legislation followed by the invention and exploitation of loopholes, followed by more legislation to cut off the most egregious evasions and circumventions.
JUSTICE ANTONIN SCALIA General Olson, is every problem soluble?
MR. OLSON Well, this Court hasn't found every problem to be solvable.
JUSTICE SCALIA If for example, the executive should make a compelling case that it is really impossible to eradicate crime if we continue with this silly procedure of having warrants for searches of houses? We wouldn't entertain the argument that, you know, this is the only way to achieve this result.
MR. OLSON Of course not.
JUSTICE SCALIA There are certain absolutes, aren't there, even if problems subsist? There are just some things that government can't do?
MR. OLSON Of course, Justice Scalia . . . but this Court has said over and over again, not only is it a critical problem that's fundamental to the integrity of our election system, but that the solutions that the legislature has enacted before, the central principles of which are embodied in B.C.R.A., are constitutional solutions to that problem.
JUSTICE SCALIA Let me understand — to be very basic, let's start with the text. Congress shall make no law abridging the freedom of speech. Congress shall make no law abridging the freedom of speech. These laws abridge the freedom of speech in some sense. Now, on what basis do you think that there is somehow a way around that text? I can think of several ones. You can say the freedom of speech doesn't mean all freedom of speech. It means that freedom of speech which was traditional at the time the provision was adopted. So you could not libel, you could not give information about the sailing of troop ships and whatnot. But this wouldn't come under that. There was no notion of restraining expenditures for campaigning when the provision was adopted. . . .
MR. OLSON What Congress has done is read the decisions of this Court from 1976, and including the earlier decisions, that specifically said and have said over and over again, that the regulations of contributions, contributions where you're talking about contributions, not expenditures. This Court has said the regulations of contributions to the Federal election process by unions and by corporations may be controlled by Congress in Federal legislation, in connection with Federal elections. This Court has said that over and over again.
CHIEF JUSTICE WILLIAM H. REHNQUIST But the reason for upholding the contribution limits restriction was because of the corruption or appearance of corruption between the contribution and the candidate. I don't think Buckley supports the proposition that Congress can willy nilly regulate any sort of contributions in connection with an election campaign.
MR. OLSON Of course not, Mr. Chief Justice. What this Court has said over and over again, that Congress can regulate contributions from corporations — the treasuries of corporations and unions. Separate segregated funds still exist so that those contributions from members can be made, and that Congress can regulate the amount of those contributions. That's all that Title I of B.C.R.A. does. And that's — all three of those aspects were addressed by this Court in Buckley and have been addressed again and again and again. . . .
JUSTICE SANDRA DAY O'CONNOR Is, is there evidence in the record of access corruption, so to speak, using soft money to fund purely state and local elections, as opposed to Federal?
MR. OLSON The evidence —
JUSTICE O'CONNOR Is there evidence of that?MR. OLSON What the evidence, if I understand your question correctly, is that the money was going from, through the national parties and at the direction of the national parties to the state subordinate committees in order to fund various activities that had to do with Federal elections, and that's what, they were —
JUSTICE O'CONNOR If I understand, evidence that the money being used to fund purely state and local election activities?
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MR. OLSON No, that was not what Congress was concerned about. Congress was concerned —
JUSTICE O'CONNOR But the ban extends to that, apparently?
MR. OLSON The — the ban — no. In the sense that the state parties can raise money that's not regulated, provided that it's not used in conjunction with Federal election activity. So in that sense, the states are free to continue to do that and spend all they wish.
For the Law
MR. WAXMAN The issues before the Court in connection with Title I and the rest of this legislation raise the most fundamental challenge for any, for any representative democracy. It's a challenge that this Court, beginning at least with Justice Frankfurter and the United Auto Workers case and extending through this Court's opinion in Shrink Missouri and Beaumont, has recognized that is the imperative of a representative democracy to retain the confidence of the individual citizens with whom we all share the franchise, that their vote counts, that big money doesn't call the tune, and that when Members of the Congress and the President and Vice President make decisions on our behalf, they do so because they think it is in the best interest of their country and our judgment as constituents and their own judgment.
CHIEF JUSTICE REHNQUIST Mr. Waxman, wasn't there considerable dearth of evidence as to something a little bit different, which are a quid pro quo?
MR. WAXMAN There was, there was a concession in this case that give, that there is no specific evidence that a particular vote was changed because of a particular donation, but of course, that, too, was not true in Buckley v. Valeo.
JUSTICE SCALIA Talk is cheap. I mean, access is not votes. Sure, Members of Congress are going to give time to people who have given money to their campaign. It doesn't mean they are going to vote that way.
MR. WAXMAN It certainly doesn't mean they're going to vote that way, but —
JUSTICE SCALIA So is this corruption?
MR. WAXMAN The testimony —
JUSTICE SCALIA Is the giving of more time to them, is that corruption, or the appearance of corruption?
MR. WAXMAN The giving — this Court has said that corruption in the Buckley sense is the influence of large donations on the judgment and behavior of officeholders, and Justice Scalia, there is a mountain of evidence from experts, members, lobbyists, 60 pages of findings from Judge Kollar-Kotelly and almost as many from Judge Leon that access buys influence, and there are any number of ways that cannot be statistically observed to change outcomes besides a particular vote.
JUSTICE SCALIA I think that's the bottom line. That's the moment of truth. Do you get any votes for the money that you contribute to the candidate? If you don't get that, you are getting nothing.
MR. WAXMAN You can go back and overrule Buckley v. Valeo, and every other one of these cases you have decided because that has never been proven. It is very difficult to prove, and what Cong — what Congress needs to aim at, it needs to aim at the willingness of the hundreds of millions of people out there who think that their vote counts and think that Members of Congress will be responsive to them and who are justifiably cynical when they see that in the last presidential election, $500 million that law does not permit to be used for Federal election purposes was used for that purpose . . .
JUSTICE RUTH BADER GINSBURG Mr. Waxman, before you do, do you have an answer to the argument put to General Olson by Justice Breyer that if you don't allow the parties to play in the soft money league, then the money will go elsewhere. It will go to the independent, sometimes highly ideological groups. It will go to the N.R.A., for example. And that would make things even worse than they are now. . . .
MR. WAXMAN It is wrong on about 10 different levels, but the bottom line is if it turns out to be an abuse, that is, if it turns out to be a phenomenon that creates corruption as this Court defined it, either in the case of individual contributions in Buckley or through corporate and labor union for the principles that were articulated by this Court in National Right to Work and Austin and about which we'll be visiting this afternoon, Congress can take care of the problem. The one thing that . . .
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the one thing that we know for certain in this uncertain world, there is at least one thing that is certain, and that is that the people who enacted B.C.R.A. and the people who populate the House and Senate, if they find that the national political parties are being disadvantaged or losing their central role, not only in our political system, but in our system of governance, they will be there to address it. General Olson —
JUSTICE ANTHONY M. KENNEDY But that's just, that's just a political calculation? There's no first, there's no constitutional standing for parties to protect their capacity to formulate policy?
MR. WAXMAN To be sure, Justice Kennedy, and if it were impaired, Congress could and would address it. The data already shows that this year the parties have raised more in hard money alone than they raised in the last presidential election in hard and soft money, and they are right on a trajectory to raise $1.5 billion in hard money for all of their activities.
CHIEF JUSTICE REHNQUIST Well, your, your response to Justice Kennedy suggests that the parties exist by the leave of Congress. Surely that isn't the case?
MR. WAXMAN Well, it, my argument doesn't depend on if the, the parties, of course, aren't mentioned in the Constitution, but they are a fundamental aspect of our system of representative government, and I, I meant to cast no aspersions on the fact that they play a role not only in electing candidates, but also in organizing in particular the legislative process and the conduct of legislative business.
My only point is that we can be certain that if something comes to pass that our experience so far shows is not going to come to pass, Congress can come to their aid or someone can come to this Court . . .
Opposed to the Law MR. ABRAMS As we turn from Title I to Title II, we turn to efforts by Congress to limit, to regulate, and ultimately to punish what are only expenditures, expenditures not made in coordination with parties or candidates which would result in them being treated as contributions, but independently, and so we deal here this afternoon in an area which as this Court observed in Colorado II, it has routinely struck down expend — any limitations in this area. We are all agreed here that strict scrutiny applies. There is no dispute about that, and I think we're all agreed that this is a content-based restriction on speech, whether we're agreed or not, it is a content-based restriction on speech.
I'd like to start with just a few observations of ——
JUSTICE O'CONNOR Do you take the position that no effective regulation of electioneering communications is permissible?
MR. ABRAMS I take the position that electionary communications as defined in the statute is so overbroad that the totality of what is encompassed in it is not regulatable. Electionary communications includes within it express advocacy, what is now or what had been subject to regulation, and to that extent, it is subject to regulation.
Justice David H. Souter: Beyond express advocacy, do you concede that anything can be regulated?
MR. ABRAMS I thought very hard about that, Justice Souter, to see if there was something I could give you in that respect. No, I do not concede that there is anything beyond express advocacy.
JUSTICE GINSBURG Do you also recognize that express advocacy is the easiest thing in the world to avoid? You just say everything about how great your candidate is or how terrible the opponent is, accept, and go to the polls and vote for X.
MR. ABRAMS I understand that that happens. I understand what this Court in Buckley understood just as well, when it said almost the same thing. The Buckley Court did not say that express advocacy was going to catch most, not to say all —
JUSTICE GINSBURG But, but Buckley was dealing with two words, relative to. It was not confronted with this problem as all.
MR. ABRAMS But Buckley Court was prescient in understanding that what has happened was going to happen. That is to say that what, what express advocacy covers would not be enough to cover the range of conceptions, people, and organizations and unions and corporations and others could come up with.
MR. ABRAMS And when they balanced the First Amendment interest against that ——
JUSTICE KENNEDY I understand why you would want to keep what one of the briefs calls this impregnable line because then you are within Buckley, but it seems to me that this distinction is just meaningless, that the findings below, in Judge Kollar-Kotelly's opinion make it clear that this is just, this is just a silly distinction in many cases. Why don't we just junk it and begin with there, begin anew, and begin anew?
MR. ABRAMS It seems to me that, that there are only two choices, that I would urge on you at least, are constitutional choices. One is to adhere to Buckley and to do so, understanding that, or accepting, excuse me, that express advocacy is as far as the First Amendment will allow you to go in terms of allowing regulation.
MR. ABRAMS The other is to try to make sense in the sense that you are using the word, Your Honor, sense by scrapping it and in a sense starting over. You don't have to scrap it in order to strike down this statute.
JUSTICE STEVENS But shouldn't you at least be able to answer, answer the question, why should a speech urging expressly to elect a particular candidate to the President of the United States, why should that speech be entitled to less constitutional protection than a speech urging the ratification of the Panama Canal Treaty, for example?
MR. ABRAMS The only reason and the only justification is that that speech becomes, as it were, so much like a contribution, so much like a final act of saying, "vote for the candidate."