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Seven weeks before the constitutionality of the McCain-Feingold campaign finance reform law will be argued before the Supreme Court, squabbles have broken out among plaintiffs challenging the law over how to divide up the face time before the justices. Lawyers for seven main challengers — including Sen. Mitch McConnell (R-Ky.) and the major political parties — submitted a plan to the Court last week that urged the justices not to grant argument time to three fellow plaintiffs, including the National Rifle Association. If the high court approves the proposal in the cases known as McConnell v. Federal Election Commission, the four hours of argument on Sept. 8 will be a career-crowning battle among seven legal titans and campaign law experts. Under the plan, arguing against the law would be former Solicitor General Kenneth Starr, now with Kirkland & Ellis, joined by noted First Amendment lawyer Floyd Abrams of New York’s Cahill Gordon & Reindel, Bobby Burchfield of Covington & Burling, and AFL-CIO Associate General Counsel Laurence Gold. The group would be allotted two hours. On the other side, according to a plan submitted by the government, Clinton administration Solicitor General Seth Waxman, now with Wilmer, Cutler & Pickering, would defend the law along with his successor as SG, Theodore Olson, and Deputy Solicitor General Paul Clement, also for a total of two hours. The lawyers excluded from the plaintiffs’ plan are not happy, and all have asked the Court to slice up the argument time differently — or add another half-hour, replicating the four and a half hours the Court allotted for arguments in Buckley v. Valeo, the 1976 case that established the constitutional baseline for examining McCain-Feingold. The NRA’s main lawyer, Charles Cooper of D.C.’s Cooper & Kirk, filed his own motion July 14 seeking argument time and noting that the NRA was “not consulted” in shaping the plaintiffs’ argument proposal. “It was striking that the McConnell coalition urged the Court to reject us without even reading our motion,” says Cooper, who filed another motion on July 18 seeking argument time. John Bonifaz, lawyer for another plaintiffs group that was excluded from the McConnell proposal, says his clients, mainly nonwealthy individuals and candidates, were given short shrift by the high-profile lawyers who want to argue the case. “If we were part of the club, they might have allowed us time,” says Bonifaz, founder of the National Voting Rights Institute. Loyola Law School professor Rick Hasen, who is tracking the case on his election law Weblog, says it was “outrageous” for the main plaintiffs to elbow the others aside. “They could have said nothing about the other plaintiffs. I was really surprised that they explicitly urged the Court not to give them time.” Jan Baran of Wiley Rein & Fielding, a key player on the plaintiffs’ team, says there was no intent to exclude the other plaintiffs. Baran says he and others talked with NRA attorneys on more than one occasion, but were told that the NRA wanted to make its own request for separate time no matter what consensus was reached among other plaintiffs. Cooper says it is a “misrepresentation” to suggest that he was consulted on the argument proposal submitted to the Court. The main motivation in keeping the number of plaintiffs’ lawyers arguing to four, according to Baran, was to “avoid an endless stream of lawyers coming to the microphone.” Baran, a veteran of campaign finance cases before the Court, will not argue. But another lawyer knowledgeable about the McConnell strategy acknowledges there were substantive reasons for excluding the NRA and the other plaintiffs as well. “Some of the claims they make are not particularly meritorious,” this lawyer says. The NRA’s position in the case diverges from that of the main plaintiffs, for example, by asserting the interests of nonprofit advocacy organizations like the NRA in ways opposed by for-profit corporations. “We make arguments that are positively unhelpful” to corporations and media organizations, Cooper says. Bonifaz, in his case, known as Adams v. FEC, makes an equal-protection argument against the part of the law that raises the individual contribution limit from $1,000 to $2,000. That increase, Bonifaz contends, has the effect of diluting the right to vote of those who cannot afford to make large donations. But Bonifaz supports other parts of the law, which he acknowledges may explain why the main plaintiffs do not want him arguing the case. Plaintiffs in the case of Paul v. FEC also make a novel free-press argument against the McCain-Feingold law — even though no media organizations are part of the case. McLean, Va., lawyer William Olson says free-press guarantees — which he contends are on stronger footing than free-speech arguments — protect everyone, not just media institutions. “There was no ABC News at the time of the founding, but there were plenty of pamphleteers,” says Olson. The McConnell group urged the Court not to hear Olson’s theory. Says Loyola’s Hasen: “Even if the arguments advanced by these plaintiffs are long shots — I think they are — why should the Court deny these plaintiffs their chance to make their case?”

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