Campaign Law Case Brings Debate, Crowds

From The Washington Post:

Campaign Law Case Brings Debate, Crowds
McCain-Feingold Bill Called Threat to Free Speech -- and Key to Honest Elections

By Neely Tucker
Washington Post Staff Writer
Thursday, December 5, 2002; Page A04

In a majestic courtroom at the foot of Capitol Hill, a team of prominent lawyers yesterday told three federal judges that the nation's new campaign finance law tramples First Amendment rights and gives special-interest groups undue sway over federal elections.

They were countered by an equally high-profile group that said the new law is fair and necessary to salvage the funding of federal campaigns from a tidal wave of "soft money" that has "thoroughly debilitated the people's faith in the political system."

The legal showdown in U.S. District Court over the Bipartisan Campaign Reform Act of 2002 -- better known as the McCain-Feingold bill -- could result in the most important ruling in campaign financing since the 1976 Supreme Court decision in Buckley v. Valeo, which has shaped fundraising for the past quarter century. The Supreme Court eventually may decide McCain-Feingold's fate, because the District Court's decision -- regardless where it falls -- is virtually certain to be appealed, said lawyers on both sides.

The ultimate decision to uphold, overturn or modify the law will affect everything from TV ads in the days before elections to how national parties raise and spend hundreds of millions of dollars for congressional and presidential campaigns.

The first day of oral arguments in the packed courtroom began with former solicitor general Kenneth W. Starr urging the judges to declare the law unconstitutional. It ended, nine hours later, with another former solicitor general, Seth P. Waxman, assuring the judges that the statute violates no constitutional protections.

"In addition to federalism and freedom of speech . . . this case is also about equality," said Starr, in remarks that harked back to the Philadelphia convention that shaped the U.S. Constitution. "It anoints winners and declares losers."

He was countered by Roger M. Witten, a lawyer for Senate sponsors John McCain (R-Ariz.) and Russell Feingold (D-Wis.), who said the bill was long overdue.

"This law is designed to repair a thoroughly broken campaign finance system that has been brought to its knees by massive cheating," Witten said. He listed former Republican and Democratic party chairmen and longtime members of Congress who submitted written depositions about the problems caused by unlimited donations to political parties.

"They're all telling this court that money corrupts," Witten said. "That unions, corporations and wealthy individuals . . . pay to play."

The law, which took effect Nov. 6, strictly limits the number of "issue ads" -- which often are thinly veiled political ads -- that corporations, unions, interest groups and individuals can run on television or radio within 30 days of a primary or 60 days of a general election. It also bars the national parties from raising and spending "soft money," the unlimited donations that amounted to hundreds of millions of dollars in recent presidential and congressional campaigns.

Critics say these measures abridge First Amendment protections of free speech. Running TV or radio ads about important issues or campaigns, they contend, is a form of speech that should be protected. They also say the new law divorces national political parties from their state affiliates, which remain free to collect soft-money donations. Moreover, critics say, the law increases the influence of special-interest groups, because they are not bound by the same campaign spending restrictions that apply to the national political parties.

"Even if there is a problem, this law doesn't fix it," said Marc Racicot, chairman of the Republican National Committee, in a break from the hearing.

There will be another half-day of hearings today before the special panel of one federal appellate judge -- Karen L. Henderson of the U.S. Court of Appeals for the D.C. Circuit -- and two U.S. District judges in Washington, Colleen Kollar-Kotelly and Richard J. Leon. Henderson said the panel would likely render a decision by late January.

Yesterday's arguments took place in a high-ceiling courtroom filled with oil paintings of former judges. More than 225 spectators, including members of Congress and big-name attorneys, packed the wooden pews. The well of the court and the jury box overflowed with lawyers taking part in the oral arguments. The three judges looked down from the judicial podium, often interrupting with pointed questions.

As the two sides painted starkly different pictures of the new law, Henderson said: "It's like two ships passing in the night. The plaintiffs talk about the First Amendment, and the defense talks about the problems" with campaign fundraising.

The Justice Department is defending the case. Those filing briefs supporting the law including 19 states, two U.S. territories, several congressional sponsors and self-described good-government interest groups. They say the new law's overarching goal is to plug loopholes that corporations, unions and political parties have exploited for 20 years to evade the intent of campaign finance laws.

Richard B. Bader, assistant general counsel for the Federal Election Commission, told the court that soft money started with "a trickle" of $18 million in 1980, but had grown to "a river" of $458 million raised in the 2000 election cycle. "Large contributions are intended to, and do, influence votes" in Congress, he said.

The political parties filing suit to overturn the law include the Republican National Committee, the Libertarian National Committee and the California Democratic Party. Private groups challenging the law include the U.S. Chamber of Commerce, the American Civil Liberties Union, the National Rifle Association, the National Right to Life Committee and the AFL-CIO.

The new law "makes it a crime for us to broadcast an ad critical of the president of the United States during an election year," Joel M. Gora, a lawyer for the ACLU, told the court. "It's hard to imagine a more blatant violation of the First Amendment."