The Appeal: Stakes — and Emotions — Running High Today

Posted September 5, 2003 at 6:26pm

While many Washingtonians frolicked over the summer recess, Seth Waxman was doing his homework.

Preparing to argue his 37th case before the Supreme Court today — a complicated defense of the new campaign finance law enacted by Congress — the former solicitor general spent the dog days of August holed up in a room at the law offices of Wilmer, Cutler & Pickering while a pack of lawyers pretending to be Supreme Court justices barked questions at him.

“A group of us go and try to beat him up. It’s practice,” remarked one lawyer intimately involved with the defense of the Bipartisan Campaign Reform Act of 2002. “That’s the classic way of preparing for a Supreme Court argument.”

Those challenging the law say they have also been staging the same sort of intense closed-door dress rehearsals — or moot court sessions — in anticipation of today’s oral arguments in McConnell v. FEC, but nerves are still on edge.

“The stakes are high, both in terms of what happens to a major reform law that’s been passed by Congress, but I think the stakes are also high in terms of what happens in the future, the efforts to regulate money in politics both at the federal level and the state level,” said Don Simon, general counsel for Common Cause, which submitted an amicus brief in the case.

The drama will reach a crescendo today when the high court considers the merits of a soft-money ban and restrictions on election-related issue advertising. Eight lawyers will present four hours of oral arguments.

In addition to Waxman, Solicitor General Theodore Olson and Principal Deputy Solicitor General Paul Clement will present the defense’s case.

Olson — an unknown quantity at the beginning of this protracted legal battle — has pleased the defendants in the case, who say they have been impressed with the strength of his legal briefs.

“The Solicitor General Olson and the Justice Department have done a tremendous job in this case and have made an all-out effort in their work to defend the campaign finance law,” said Fred Wertheimer, president of Democracy 21.

According to those who were around for the last big campaign finance skirmish — the 1976 consideration of post-Watergate reforms in Buckley v. Valeo — then-Solicitor General Robert Bork “ducked” the issue, refusing to take a position in defense of the law.

Arguing on behalf of a consortium of plaintiffs is former Solicitor General Kenneth Starr — a close friend of Olson’s; First Amendment expert Floyd Abrams; Covington & Burling’s Bobby Burchfield; AFL-CIO Associate General Counsel Laurence Gold; and Jay Alan Sekulow, chief counsel for the American Center for Law and Justice, a group founded by televangelist Pat Robertson.

‘A Hot Bench’

Today’s drama will not come from the lawyers arguing the case — their views have been well-expounded in lengthy legal briefs and during two days of oral arguments at the District Court level late last year — but from the justices themselves.

“I would expect a very hot bench indeed,” predicted Abrams, noting the voluminous stack of combative legal briefs in addition to the sometimes bitter 1,600-page set of divided opinions.

“The complexity of the law — a characteristic the plaintiffs’ attorneys are certain to dwell on — will likely generate greater than usual questioning by the justices,” Abrams said in a telephone interview last week. “It’s a very complex statute. It would just be natural for the court to want to get a level of clarification about just what certain things mean.”

The fractured lower court decision, which many legal observers said failed a basic responsibility of determining the facts of the case, also will likely lead to basic questions from the justices during the argument.

“It would not be surprising to hear one or more of the justices asking the attorneys to express an opinion on how they should treat certain factual findings that may be relevant, such as corruption or the appearance of corruption,” said Rick Hasen, a campaign finance law expert who teaches at Loyola Law School.

While Abrams, the nation’s best-known First Amendment attorney, will spend his 35 minutes of oral argument on convincing the justices that the law is an attack on free speech, he won’t be able to show in the courtroom examples of broadcast ads that would be prohibited. Instead, both sides have included representations of the political ads they believe best support their cases in their briefs along with CD-ROMS of the ad images.

The tactic is obvious, because despite the sometimes arcane technical and legal definitions surrounding the provisions dealing with electioneering communications, it is the pictures and text of the ads themselves that are the central concern.

Abrams said he expects the justices to be interested in looking at the various ads that have been submitted: “The question here is, which ones will strike a nerve?”

Surprises Possible

On the soft-money subject, the defense will argue that contrary to a major shift in law or assault on the First Amendment, BCRA merely restores the intent of original laws meant to prohibit corporations and unions from making federal campaign contributions.

“Prior to enactment of BCRA, corporations, unions, individuals and political parties routinely evaded long-established contribution limits and source restrictions,” Waxman and others wrote in their Supreme Court brief. “The Members of Congress who enacted BCRA correctly concluded, based on substantial record and their own experiences, that the corrupting potential of soft money donated to national parties stems from the way in which it is raised, and from the close relationship between national parties and federal officeholders and candidates.”

Opponents of BCRA, however, will argue that the ban goes too far.

“Our basic point is that the statute really is almost a subject of false advertising,” said Burchfield, who will be arguing on behalf of the Republican National Committee. “While claiming to be directed at getting special interests out of politics, it in fact neutralizes the entities in the political process that have the most beneficial effect of mediating and moderating among the various interest groups, while shifting the power and the resources to the interest groups themselves. In our view, that’s just fundamentally irrational.”

While most court observers have pointed almost exclusively to Chief Justice William Rehnquist and Justice Sandra Day O’Connor as the likely swing votes, there may still be surprises simply because the members of the current court have never before been confronted with such sweeping, interlocking questions about the regulation of political speech all at once.

Since the court’s landmark 1976 Buckley decision, the campaign finance cases have mostly nibbled at the edges and the justices, with the exception of Justice Clarence Thomas and to a lesser degree Antonin Scalia, have been content with the basic framework that has been in place since the post-Watergate era.

Indeed, while the court has extensive experience with questions about contribution and expenditure limits, the issues presented by BCRA’s regulation of electioneering communication are far less settled, and judging by the often shrill language in each side’s legal briefs, far more emotional and controversial.

While the electioneering communication provisions of BCRA require that broadcast ads be paid for with funds from a political action committee that is fully disclosed during the period immediately before an election if a candidate’s name or image is used, the court may want to explore whether there may be a middle approach.

Hasen, who counts Rehnquist, O’Connor and Justice David Souter as being in play, suggested the court may decide that the PAC funding requirement overreaches but still leaves in place a disclosure regime that would pass constitutional muster.

“They haven’t faced the question of large-scale disclosure since Buckley,” Hasen noted.

The exceptional length of time for the oral arguments, though, will almost certainly provide a glimpse of each justice’s thinking.

“They may very well have made up their minds based on the briefs,” Hasen said. “But with four hours of time, there’s a lot of time for talking.”