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Justices Meet Today on Reform Case

Members of the Supreme Court are slated to meet privately in conference today to hash out the timing and other procedural details of most important campaign finance case since the landmark decision in Buckley v. Valeo in 1976.

The high court’s nine justices will consider a dozen jurisdictional statements — detailing what the various parties want the court to look at — as well as motions for an expedited briefing schedule in the ongoing campaign finance litigation.

Lawyers on both sides of the case had requested that the court note “probable jurisdiction” — meaning the court will schedule the case for briefing and argument — as well as issue a briefing and argument schedule for the case by today’s date.

The jurisdictional statements filed by the parties involved in the case lay out in detail the aspects of the district court panel’s ruling on the Bipartisan Campaign Reform Act for which they are seeking Supreme Court review.

While both plaintiffs and defendants in the case have asked the high court for an expedited review of the case, the two sides have disagreed on a number of other procedural details related to the length and format of briefings in the case.

On behalf of the Federal Election Commission and other defendants, U.S. Solicitor General Ted Olson initially requested that each side file two briefs — an opening brief and a response — with plaintiffs filing each of their briefs first.

He also recommended that the court hold oral arguments in early September — either on Sept. 5 or Sept. 8 — or, alternatively, the week of Sept. 29. The brief also noted, however, that the court could choose to hold oral arguments on Oct. 7, the first day of the court’s October 2003 term.

In his response on behalf of Sen. Mitch McConnell (R-Ky.) and other plaintiffs, Kenneth Starr agreed that “expedited oral argument is warranted” and stated that plaintiffs “favor oral argument in early September.”

“Holding oral argument on September 5 or 8 will enable this court to have approximately one month to begin preparing its opinion in these cases before the official start of the October 2003 term,” Starr wrote.

The former independent counsel and head of McConnell’s legal team noted that hearing the case on those dates would “give the Court a better chance to resolve these cases as early as possible in the 2004 election cycle, which is already under way.”

Moreover, Starr opposed Olson’s suggestions for briefing format and length and argued that the court should follow its usual pattern of having three simultaneous briefings.

While Olson had suggested that each side file only two briefs with plaintiffs filing their briefs first, Starr argued that such a scheme would be unfair to plaintiffs and that there was no basis for it.

The Republican National Committee, Chamber of Commerce and other plaintiffs stated that they supported McConnell’s request for three rounds of simultaneous briefings.

Under that proposal, the FEC and others defendants would file a brief addressing only the findings that were unfavorable to them in the district court’s ruling, then another brief addressing only the issues which were favorably addressed by the courts, and finally a reply brief addressing only the issues which were adversely impacted by the district court’s ruling. McConnell and other plaintiffs would likewise simultaneously file three briefs in the same manner.

However, in a reply, the solicitor general defended his original suggestion for the briefing process, as well as the contention that plaintiffs should file first.

Olson noted that because of the “unusually close connection between BCRA provisions that were declared invalid … and provisions that were sustained,” the briefing scheme suggested by Starr and other plaintiffs could lead to “duplicative” and “confusing” briefs.

The AFL-CIO, which also opposes the new law, stated in a June 3 filing that it “generally” agrees with Olson’s suggestion, but asked that the Supreme Court not require any briefs to be filed until after it hands down its opinions from the October 2002 term.

The AFL-CIO noted that this will give them a chance to “take into account” the disposition of certain “important cases” such as Nike Inc. v. Kasky and the Federal Election Commission v. Beaumont — which concern the First Amendment rights of both for-profit and nonprofit corporations.

Starr, in his motion, asked that the court also set four hours of oral arguments, as were allotted in Buckley v. Valeo, the last campaign finance case of this magnitude.

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