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BCRA Opponents Agree With Early Start, but Not Briefing Limitations

Like the bill’s sponsors, opponents of the Bipartisan Campaign Reform Act favor early-September oral arguments in the Supreme Court, but they vigorously oppose the defenders’ proposal that there be only two rounds of briefing in the landmark case.

On Friday, U.S. Solicitor General Ted Olson submitted a proposed schedule for arguments to Chief Justice William Rehnquist on behalf of the Federal Election Commission, asking for arguments in early September and suggesting that parties involved in the suit be limited to two briefs on each side.

But former Solicitor General Kenneth Starr, who is heading up the legal team for Sen. Mitch McConnell (R-Ky.) and a group of other plaintiffs fighting to have BCRA overturned, argued in a response Tuesday that the High Court should stick to its usual three-brief format.

“The Court has typically reserved the ‘two-round’ format — in which each side files an opening and reply brief — only for cases involving extraordinarily severe time constraints,” Starr stated in his response to Olson’s motion.

Continued Starr: “Even if this Court decides to hold oral argument as early as September 5, no similarly severe time constraints exist here.”

Even with oral arguments in early September, the parties in the case would have a full three months until oral argument, the response explained, giving ample time for the filing of three briefs.

“With both plaintiffs and defendants dissatisfied with parts of the district court’s decision, there simply is no basis for departing from the normal ‘three-round’ briefing format that generally governs appeals and cross-appeals,” the response explained.

Starr also argued against the notion put forth by Olson and the Congressional authors of the legislation that the plaintiffs in the case should file their opening briefs first. He asserted that both sides should file their briefs simultaneously and to do otherwise would create inequity.

Starr’s motion also suggests that opening briefs be limited to 60 pages and reply briefs be limited at 20 pages and that the three briefs be due July 8, Aug. 4 and Aug. 22.

Olson’s proposal suggests that opening briefs for plaintiffs be limited to 100 pages and filed by June 27, and that opening brief sets by defendants also be limited to 100 pages and be filed by July 18. He then suggests that 40-page reply briefs could be filed by plaintiffs Aug. 5 and by defendants Aug. 22, with oral arguments commencing on Sept. 5 or 8.

McConnell’s counsel also asked for a total of four hours for oral arguments — the same amount allotted when Buckley v. Valeo was argued in 1975 and decided in 1976.

“A similar amount of time will be needed in this case — especially given the novel and complex provisions of BCRA dealing with ‘soft money’ and ‘electioneering communications.’” Starr wrote.

The Supreme Court has yet to issue a schedule for hearing the case.

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