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No Clear Victors Emerge

Justices Line Up on Opposite Sides As High Court Hears Historic Case

Members of the Supreme Court returned one month early to a packed chamber Monday to hear arguments in McConnell v. FEC, but no clear victors emerged after four hours of grueling battle over campaign finance reform.

While lawyers, students and other spectators lined up before dawn in hopes of claiming a seat for oral arguments in the historic case — perhaps the most important First Amendment case in decades — the high court’s nine justices lined up as many expected on opposite sides of the controversial issue which will likely impact fundraising for years to come.

Justices Stephen Breyer and John Paul Stevens appeared during the questioning to be the court’s most ardent cheerleaders of the Bipartisan Campaign Reform Act of 2002. Justices Antonin Scalia and Anthony Kennedy issued stinging rebukes of the new law, which bans soft money and restricts issue advocacy featuring federal candidates in the days near an election.

Frequently invoking the Bill of Rights — “Congress shall make no law abridging the freedom of speech” — and suggesting more than once that “there are just some things the government cannot do,” Scalia criticized the notion that “too much money, too much money is being spent on elections.”

Under BCRA, which went into effect last November, “candidates are raising more money this year,” Scalia said. He added that “to the extent Congress was looking for a scheme to protect incumbents, they were doing very well.”

Chief Justice William Rehnquist also offered criticism of lawmakers, remarking that Congress cannot “willy-nilly regulate any contribution to a federal election.”

Rehnquist and Justice Sandra Day O’Connor were the most carefully watched, and Rehnquist seemed at times more favorable to opponents of BCRA, while O’Connor remained sphinx-like.

Breyer — a former chief counsel of the Senate Judiciary Committee and assistant special prosecutor of the Watergate Special Prosecution Force in 1973 — invoked fictional characters such as “Joe Moneybags,” “Joe Rich” and “Joe Wealthy” to explain how people have been getting around existing campaign finance laws and defended Congress’ attempt at plugging such loopholes.

“Joe Wealthy wants to write a check for $10 million to help his candidate Smith get elected,” Breyer said. “They figured out a way, despite the prior law, to do it, to pay for … get- out-the-vote and issues ads,” Breyer continued, explaining that while the issue ads might not contain express advocacy, they might describe one’s opponent as a “real rat” and have the same effect.

“The solution is to say that all pennies are federal dollars,” Breyer said.

Justice David Souter also defended BCRA, arguing that “if you do not allow what Congress has done here, you are allowing a complete end run around” the campaign finance rules.

However, lawyers attacking the law complained to the justices that the new definitions of electioneering communication contained in BCRA is “overbroad” and indicated that anything beyond the “express advocacy” standard established in Buckley v. Valeo violates the First Amendment.

Former Solicitor General Kenneth Starr kicked off the oral arguments Monday morning, arguing against Title I of the law, which bans soft money.

“BCRA, in a word, goes too far,” Starr told the justices, suggesting instead that Congress could have enacted a more narrowly tailored amendment such as one authored by Sen. Chuck Hagel (R-Neb.) to cap contributions to the national parties.

Starr’s theme was echoed by other plaintiffs’ attorneys throughout the case.

Bobby Burchfield, of Covington & Burling, argued against the soft-money ban on behalf of the Republican National Committee and other party committees.

“We are not here quibbling about fine-tuning prophylactic measures,” Burchfield said, stressing that the key to safeguarding the campaign finance system from the appearance of corruption is through complete and transparent disclosure, not by banning unlimited non-federal donations.

Like the morning session, the afternoon’s argument on the electioneering communication provisions revealed few surprises among the nine justices, although Rehnquist seemed clearly troubled by requirements that PAC money be used to pay for broadcast ads mentioning a candidate’s name immediately prior to an election.

The whole point of the First Amendment, Rehnquist noted, is to allow people who might not necessarily have the ability the opportunity to change public opinion.

The single Supreme Court precedent that dominated the discussion — to the point of humorous chiding of Deputy Solicitor General Paul Clement by Scalia — was the court’s 1990 ruling in Austin v. Michigan Chamber of Commerce that upheld the power to regulate corporate and union expenditures in federal elections by mandating that expenditures must be made through a PAC.

The Austin case was decided 6-3 and all three of the dissenters remain on the court. And one of the justices who voted in the majority in Austin — Chief Justice Rehnquist — expressed doubt Monday about his vote, indicating the court may be ready to re-examine the broad question of whether corporate and union political expenditures can be regulated in any context, not necessarily just in the area of issue ads.

One of the lessons from the 1976 Buckley case, Rehnquist noted, is that it is not up to the government to decide whether there is too much speech coming from one side and not enough from another side.

As in the morning session, all of the justices except Clarence Thomas asked questions, and although she asked relatively few questions, every word from O’Connor’s mouth drew noticeable attention from the packed courtroom audience.

“Is it your position that no effective regulation of electioneering communication is possible?” she asked noted First Amendment attorney Floyd Abrams.

BCRA is overbroad and overreaches, Abrams replied, and the speech it is trying to regulate beyond broadcast ads that expressly call for the election or defeat of candidates may not be regulated. The court, he said, could go no further than it had in the Buckley case when it came up with the express advocacy test.

But the problem is that it is very easy to construct an ad so that it wouldn’t be regulated under the express advocacy test and the Buckley decision case didn’t foresee the type of ads that are common today, noted Justice Ruth Bader Ginsburg.

Clement picked up on that point during his time at the podium, saying bluntly that “the express advocacy test no longer works.”

Justice Breyer, an apparent sympathizer to BCRA, asked “how exactly is there a burden [on speech] when all the law requires is that hard money from a PAC be used when buying broadcast ads right before an election?”

“You lose a lot of speech,” responded Abrams. “There’s less money available to pay for speech because PACs can’t raise as much money.”

For example, a group like the National Rifle Association — under the rules governing PACs — could raise money for its PAC only from the 4 million members of the NRA and not the 80 million gun owners who contribute to the group in response to solicitations, Abrams said.

“That’s part of living in a democratic society,” said Breyer. “Why should the NRA’s speech go beyond its actual membership?”

That point was echoed by Justice Souter, who asked AFL-CIO Associate General Counsel Laurence Gold why an organization should have a right to speak beyond its membership.

The speech that needs protection is the speech that provides information to the public, responded Gold.

Breyer’s tough questioning of Abrams on the NRA example was pointedly ironic because the NRA itself was shut out of the oral argument by Abrams and other members of the plaintiff team.

But Abrams did concede that his clients at least are not challenging the disclosure requirements, which perhaps might open the door for the justices to broadly enforce disclosure but split on the question of funding ads from PAC money. The view that requiring disclosure is acceptable, however, is not shared by all of the plaintiffs in the case, most notably the American Civil Liberties Union.

O’Connor also seemed troubled by the possibility that an issue ad that mentions the name of a bill like the McCain-Feingold legislation itself would be barred simply because of the use of the Senators’ names.

A number of the justices expressed reluctance to even join the seemingly endless back and forth over exactly what the distinction is between genuine issue ads, so-called sham issue ads and actual electioneering ads.

“This distinction is just meaningless,” noted Kennedy, citing the often divergent findings of the three-judge lower court. “This is just a silly distinction. Why don’t we just junk it?”

Scalia agreed: “What is the purpose of an issue ad unless it is to persuade the voter to take some action to carry the day? Isn’t every issue ad an appeal to voters?”

Abrams urged the justices to spend time looking at the ads themselves. He pointed to one particular ad sponsored by a term limits group that called on Rep. David Wu (D-Ore.) to sign a term limits pledge. Abrams told the justices that he believed the Wu ad did not carry an election message, to which Scalia retorted, “You could have fooled me.”

Abrams tried to focus the justices on the flaws in the academic studies that campaign finance reformers relied on to show that the law would not affect a significant number of issue ads. The attack on the Buying Time reports has been a central tactic for the plaintiffs in the lower court proceedings and it seemed to have some resonance amongst the justices.

Rehnquist most notably commented that he thought the lower court “pretty much disbelieved the Buying Time study.”

Scalia also dwelled on sections he said provided an exemption on speech regulation to media corporations: Why is it OK for General Electric’s NBC unit to carry stories about candidates that may be slanted one way or the other without the same regulation that would apply to any other group? “It seems everyone should go out and get themselves a television station,” he said.

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