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THE LINEUP At 7:20 on the morning of Dec. 4, more than 25 people stood in the biting wind outside the District’s federal courthouse on Northwest Constitution Avenue. They were waiting for seats to hear McConnell v. FEC, the case challenging the Bipartisan Campaign Reform Act of 2002 — the most sweeping campaign finance reform law in more than 25 years. As with any high-profile Washington hearing, the front was taken up by professional line-standers — one of whom had shown up in the cold at 4:30 a.m. to snag the first position. As the line snaked back, lawyers bearing boxes filled up spaces. Cleta Mitchell, a Foley & Lardner D.C. partner representing the National Rifle Association in the case but not making an oral argument, showed up at 6:45 a.m., a glossy black fur coat over her red suit. She waited with a group of lawyers also representing the NRA, including a contingent from the District’s Cooper & Kirk. Court personnel, taking pity on the shivering crowd, opened the doors at 7:27 a.m., before the court’s official 8 a.m. opening. Lawyers for the Federal Election Commission, the Justice Department, the plaintiffs, the National Republican Congressional Committee, and Common Cause were mixed together in the line. Eventually, the crowd moved up to the sixth floor, where everyone was sorted into one of four groups: the attorneys arguing; the few attendees with reserved seats, such as FEC commissioners, four of whom attended, as well as Sens. Mitch McConnell (R-Ky.) and Russell Feingold (D-Wis.); the press; and the general public. McConnell is already well-known for the proverbial strange bedfellows that it has created. Nowhere was that more obvious than in the scene around the courthouse. Laurence Gold, the AFL-CIO’s associate general counsel, and Jan Baran, who represents the U.S. Chamber of Commerce, chatted in the well of the courtroom before opening arguments. During the lunch break, legendary First Amendment lawyer Floyd Abrams and Sen. McConnell were having a discussion around the corner. Former federal appeals judge and one-time Solicitor General Kenneth Starr, who had argued against the law earlier, was only a few feet away. Starr, a partner in the D.C. office of Kirkland & Ellis, was approached by an older man with a hardback copy of Starr’s book on the Supreme Court. The two spoke for a moment, and then Starr signed an autograph. “Because it’s a very important subject, so I thought I would come,” said Loudon County retiree Dinesh Kansul, explaining why he trekked to hear the arguments. THE ACTIVE JUDGE U.S. District Judge Richard Leon didn’t ask the first question, but he certainly engaged in more pointed exchanges than his colleagues on the special three-judge panel — fellow U.S. District Judge Colleen Kollar-Kotelly and Judge Karen LeCraft Henderson of the U.S. Court of Appeals for the D.C. Circuit. During arguments, Leon leaned sideways, training his eyes on the advocate of the moment. He would frequently nod his head, showing he was following, if not always agreeing with, their arguments. He saved some of his toughest questioning for two of the government’s lawyers. As Richard Bader, head of the FEC’s Litigation Division, began his argument with an exploration of the growth of so-called soft money in national political elections, Leon leapt in almost immediately, asking Bader if the government had statistics on how much of the soft money raised and spent in recent election cycles was regulated by the states, and how much was completely unregulated. Bader said he did not have specific statistics. Leon came back: “Should we assume it isn’t regulated?” “We shouldn’t assume anything,” Bader replied to the judge, but then added, “For our purposes it doesn’t matter.” Bader then went on to put the focus where he wanted it-his claim that the problem with soft money is that it exists at all. But a more difficult back-and-forth exchange arose during the argument of James Gilligan, the Justice Department trial attorney who defended the provisions regulating broadcast advertising by outside interest groups. Gilligan was the first lawyer up to defend the law, following five lawyers for the plaintiffs who delivered more than 90 minutes of arguments. He got through some of his argument, showing two examples of the “sham issue ads” he said the law was designed to regulate, including one insinuating that Hillary Rodham Clinton was a lesbian. About 10 minutes in, Judge Leon asked if he had statistics about how many ads did not identify the group paying for it. Gilligan replied that many ads identify a group, adding that such identification can be less than illuminating. He mentioned Citizens for Better Medicare, a pharmaceutical industry-funded group, as an example. Judge Leon then asked for statistics on how many ads were run by established groups like the NRA and the AFL-CIO and how many were run by groups like Citizens for Better Medicare. Eventually, like Bader earlier, Gilligan too had to tell the judge that he didn’t have any statistics. Instead, he started to discuss examples of sham issue ad campaigns. Leon still seemed dissatisfied. “You have to concede your example doesn’t answer my question,” he said. TAKING A SPECIAL INTEREST Notwithstanding Leon’s exchanges, the hearing was not exceptionally lively. With two days of testimony to wade through, the judges paced themselves for a marathon, not a sprint. Judge Henderson sat in the center of the panel. She leaned forward during arguments, chin in hand, while the lawyers made their case. She tapped a few notes or questions at times on the laptop before her. She asked the first question of the arguments, jumping in a little more than 15 minutes into the opening argument by Starr. She asked a question about Starr’s interpretation of the law’s reach, offering him the opportunity to tee up by agreeing with Judge Henderson and saying, “That is our point. It is so sweeping.” Henderson continued in that vein with several other lawyers, asking some detailed questions about how the lawyers interpreted certain subsections of the law. But in an exchange with Bobby Burchfield, a Covington & Burling partner representing the Republican National Committee, Henderson offered some criticism of the law’s soft money ban. Burchfield argued that by banning the national parties from raising soft money, the law injured entities like the RNC and gave outside special interest groups much more power in the political process. That portion of the law is titled “Reduction of Special Interest Influence,” and Henderson played off that language, saying, “I would say it’s a reduction of no special interest influence,” seemingly moved by Burchfield’s arguments. Observers were interested by the number of questions Henderson asked. “It’s unusual for Judge Henderson to ask questions,” said Joseph Sandler, a partner at Sandler, Reiff & Young who is representing the California Democratic Party but did not make an oral argument. Judge Kollar-Kotelly was the most silent member of the panel. She sat for most of the argument in a classic judge pose, pushed back in the seat, an impassive expression on her face. Kollar-Kotelly — whose recent ruling likely put to rest the government’s seemingly never-ending antitrust case against the Microsoft Corp. — did ask a few difficult, dense questions that highlighted uncertain areas of the law. Her first question was to Deborah Caplan, an attorney with California’s Olson, Hagel & Fishburn who argued for California Democratic parties against the law. The judge asked Caplan to address the issue of standing under the 10th Amendment, saying that court opinions had stated that private citizens did not have a right of action under the 10th Amendment, only states did. Caplan tried to discuss the “fine line” the plaintiffs were walking in bringing their case. But Kollar-Kotelly seemed less than satisfied. “I am just trying to understand what your argument is,” she said. STYLE COUNSEL Each of the nearly two dozen lawyers who argued before the court brought a slightly different approach. Floyd Abrams, a partner at New York’s Cahill, Gordon & Reindel, had a relaxed, conversational style. He showed six different ads to the judges and then sounded aggrieved as he asked, “When did this become unprotected? This is precisely the sort of speech the First Amendment protects.” Abrams also frequently used the specter of a jail sentence to emphasize the kind of penalty his clients could face for running ads. Starr offered a historical and textual analysis of the Constitution to say that the soft money ban should not be upheld. “Congress has gone too far,” he said. “It has exceeded its enumerated powers.” When making certain points, he lifted his fingers like a conductor. When discussing the law’s impact on state and local activities, and what counts as federal election activity under the new law, he told the judges, “This is, upon reflection, staggering,” leaning in toward the microphone so that the last word was amplified heavily. Another former solicitor general, Seth Waxman, made a vigorous defense of the campaign finance reform law. “Title 2 is a model of care and restraint,” argued Waxman, a Wilmer, Cutler & Pickering partner. “This effort deserves to be praised. It does not deserve to be struck down.” Waxman defended the law’s intent and reach, saying that the ads Abrams had shown were in fact intended to influence an election. He wound up his 35 minutes with a denunciation of the NRA and its ad campaigns. Only feet from Wayne LaPierre, the NRA’s chief executive, Waxman said LaPierre admitted in his deposition that he wanted to defeat Al Gore in the 2000 presidential election, and that many NRA ads were election ads, not issue ads. Waxman’s final words were an impression of Charlton Heston from one of the NRA’s 30-minute infomercials. He talked of how the group’s president specifically mentioned and attacked Gore in the ad. To emphasize the dramatic nature of the attack Waxman raised his arm, mimicking Heston’s actions in the infomercial when the actor held up a rifle and proclaimed that Gore and other gun control advocates would have to pry the weapon from his “cold, dead hands.” Waxman repeated Heston’s words — “cold, dead hands” — as the closing salvo in his oral argument. BENCH WARMERS When the morning session opened on Dec. 4, there was hardly room to shift on the hard benches of the courtroom. Because the rows were filled, some reporters spilled into seats in the courtroom well. The first day was like an endurance test. Over the course of nine hours, witnesses and reporters eased themselves out of the courtroom. Sen. Feingold, one of the campaign finance reform law’s sponsors, attended only the morning arguments. But Sen. McConnell, who lent his name to the suit against the law, lasted the entire day. Other observers filed out during the afternoon, leaving patches of empty bench space here and there. By day’s end, the number of observers had dropped well below the morning estimate of about 225. The most precipitous drop was among the reporters. Deadlines and the length of the arguments had taken their toll, and only a handful of the dozens who began the day were still there to record the last words. AND ON THE SECOND DAY … The second day of arguments was more subdued. Day 1 focused on two major provisions: the soft money ban and the restrictions on interest group advertising. Day 2 was given over to a grab bag of issues — from the ban on donations by minors to record-keeping requirements for broadcasters. Jan Baran, a Wiley Rein & Fielding partner working for Sen. McConnell and the U.S. Chamber of Commerce, among others, sparred with the law’s defenders over whether plaintiffs could challenge the law’s coordination provision, which instructs the FEC to develop specific rules on what counts as coordination between a candidate and an outside group. The defenders said the plaintiffs could only file suit against the agency’s regulations, and would need to do so as an administrative procedures challenge. Baran said that the law itself provided definitions and assumptions the court should toss out. Herbert Titus, arguing for Rep. Ron Paul (R-Texas) and a collection of groups such as Gun Owners of America, made his third appearance on Dec. 5, making him the lawyer who argued the most times before the panel. Titus, an attorney at three-lawyer firm William J. Olson in McLean, Va., attacked the law by arguing that it infringes on the freedom of press rights of his clients. John Bonifaz offered one of the most intriguing examples of the strange alliances in the case. Bonifaz heads up the National Voting Rights Institute, which battles for public financing of elections and other strong reforms. But Bonifaz was among those attacking the law, arguing against the increase in the individual federal contribution limits for candidates, from $1,000 to $2,000. “[My client] and other nonwealthy donors will be effectively excluded from the electoral process,” he said. The law’s defenders didn’t concede. “The harm is that certain people have less discretionary income that others,” said FEC attorney Stephen Hershkowitz. “That harm is not caused by [this law].”

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