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Copy machines were running hot at election law shops across town last week as lawyers in McConnell v. FEC filed their legal arguments with the U.S. District Court for the District of Columbia. The case involves a multipronged and multiparty challenge to the Bipartisan Campaign Reform Act of 2002, an overhaul of campaign finance regulations passed earlier this year. The law was immediately challenged by a collection of political parties, interest groups, lawmakers, and individuals. The law took effect Nov. 6, the day after elections and the deadline day for parties to file opening legal briefs for the panel of three federal judges presiding over the case — District Judges Colleen Kollar-Kotelly and Richard Leon and D.C. Circuit Judge Karen LeCraft Henderson. Among other things, the law bans national parties from raising and spending “soft money” that is unregulated or regulated only by state laws; restricts the type of money state and local parties can spend on activities close to election time or with a potential impact on a federal election; raises the federal contribution limits on individual donations; and limits certain types of political advertising close to an election. Opponents of the law mounted a twofold attack in their 353-page brief — a legal argument about why the law violates the Constitution, existing laws, and Supreme Court precedent, and a practical argument about the detrimental impact of the law on the practice of politics. Many of the parties signed on to a main brief, which attacked almost every one of the law’s provisions. Several plaintiffs, like the Republican National Committee, the National Rifle Association, and the AFL-CIO, also filed individual briefs on particular portions of the law they found most objectionable. The main authors of the omnibus brief were Floyd Abrams, a First Amendment expert and Cahill Gordon & Reindel partner, and Kenneth Starr, the former Clinton special prosecutor and federal judge who is now a D.C. partner at Kirkland & Ellis. Lawyers representing other parties who worked on briefs include Covington & Burling partner Bobby Burchfield, the RNC’s outside counsel; Wiley Rein & Fielding partner Jan Baran; and Cooper & Kirk partner Charles Cooper. The brief accused the new law of violating the free speech and association protections of the First Amendment, and the equal protection clauses of the Fifth Amendment. Several of the briefs also said the law violated Supreme Court rulings in earlier campaign finance cases and was overbroad, lacking the narrow tailoring and government interest needed to pass judicial scrutiny. “In none of these areas is Congress free simply to ignore competing constitutional interests, to disparage governing Supreme Court case law, and to disregard well-established and deeply rooted constitutional limitations,” says the main brief in the case. But the lawyers also invoked what they said would be the law’s practical impact on politics. The national and state parties go into significant detail about their fund-raising and spending methods and outline what they see as the law’s deleterious effects. Several briefs spend pages and pages attacking studies by the Brennan Center for Justice, a legal organization involved on the defense side of the suit, for its reports about television advertising during recent campaigns. The defenders of the law offered an equally weighty presentation. The defense’s filing included a joint brief written by the Department of Justice and the Federal Election Commission, and another brief from the team of private lawyers representing the bill’s congressional authors. The outside legal work is being managed by Wilmer, Cutler & Pickering, with three firm partners — Seth Waxman, Roger Witten, and Randolph Moss — taking the lead. Their brief also mounted theoretical and practical arguments, claiming the law was both constitutional and in line with previous rulings on campaign finance. “Congress broke no new legislative or constitutional ground,” says the brief. But the defenders also argued that the act was needed to close loopholes in existing laws and to end fund-raising excesses and scandals. The defenders used studies of recent campaigns, testimony, and finance data to bolster that point. But the arguments of the law’s defenders have yet to be completely revealed. At the outset of the case, to facilitate discovery, both sides agreed that certain information deemed sensitive would be kept out of the public record. As a result, certain portions of the briefs filed last week were blacked out. Now lawyers for the congressional authors — who had to redact from their briefs many examples of supposed campaign finance abuses — have asked their adversaries to agree to amend the secrecy deal. The lawyers in the case have scant time to digest each other’s filings. On Nov. 20, the two sides must file opposition briefs, and reply briefs a week later. Oral argument is set for Dec. 4. “It’s a fairly fun part of the process now,” says Moss, representing the congressional authors. “You look at the opposing side’s arguments, pick them apart, and explain why they are not persuasive.”

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