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Washington-On most September days, the majestic Supreme Court chamber is empty except for the occasional lecture for tourists about its architecture and history. On Sept. 8, the court will be packed as the justices hold an extraordinary four-hour session to consider the constitutionality of the Bipartisan Campaign Reform Act of 2002. Seating is so tight that lawyers arguing in the case will be restricted to five guests each in the courtroom, far fewer than usual. The argument was set for weeks before the court’s traditional opening on the first Monday in October in hopes that it will rule before the presidential campaign gets going in earnest. Millions of dollars are already being raised by political candidates in spite of the uncertainty surrounding the law, also known as McCain-Feingold. Some on both sides of the case say privately that campaign money will flow to its targets no matter what congressional obstacles the court may uphold. Mountain of briefs In the meantime, preparations for the oral arguments include a mountain of briefs for the the justices to consider. “A large part of the challenge in preparing for the case is mastering the huge record,” said Bobby Burchfield of Washington’s Covington & Burling, who will argue against the law on behalf of the Republican National Committee. “There are a lot of issues here.” Among the eight lawyers who will argue in the cases consolidated under the title McConnell v. Federal Election Commission, No. 02-1674, are two former solicitors general: Kenneth Starr, now in the D.C. office of Chicago’s Kirkland & Ellis; and Seth Waxman, now at D.C.’s Wilmer, Cutler & Pickering. Solicitor General Theodore Olson will also appear. The three will be aligned in a way that defies conventional politics. Waxman, former President Bill Clinton’s last SG, will join George W. Bush appointee Olson in defending the law. Starr, in most other respects a political bunkmate of Olson’s, will argue against it. In the morning, Olson will have 40 minutes to defend the act’s soft-money ban, and his deputy, Paul Clement, will get 40 minutes in the afternoon to defend limits on electioneering communications and other provisions. Joining Starr in attacking the law will be other infrequent bedfellows: Republican advocate Burchfield, Laurence Gold from the AFL-CIO, Jay Sekulow of the Pat Robertson-founded American Center for Law and Justice and Floyd Abrams of New York’s Cahill Gordon & Reindel. In the minds of many observers, the lineup has one notable omission: Charles Cooper of Washington’s Cooper & Kirk, author of a brief for the National Rifle Association, widely regarded as one of the most persuasive filed against the law. Cooper compares the act to the Sedition Act of 1798 in arguing that the law bars the kind of communication that is essential to the NRA’s existence. It will, Cooper writes with flourish, “reduce the NRA’s political voice to a whisper.” The solicitor general’s brief spends considerable space responding to Cooper’s brief, but Cooper will not address the court in person. Sore feelings linger over the challengers’ decision to exclude Cooper from oral argument, the second slight to the NRA in the case. When President Bush signed the law last year, the NRA was first to the courthouse to challenge it. It stepped aside to let Senator Mitch McConnell, R-Ky., be the plaintiff whose name would be identified with the case. Cooper said, “We’re definitely disappointed we were not able to receive oral argument time,” Cooper said. But he said he has conferred with Starr and others on argument strategy and will be at one or more moot court rehearsals this week. The brief-writing-especially on the side of the defenders of the statute-seems to follow a “cover the waterfront” strategy. In many ways, it mirrors the strategy of the proponents of affirmative action in the University of Michigan cases last term who wanted to advertise to the court the wide range of institutions that support affirmative action-from major corporations to military leaders. There is a brief from economic gurus, including Warren Buffett and Paul Volcker, who tell the court that “prominent business leaders-those perceived to benefit the most from the access and influence purchased with soft money-do not wish to continue funding an unrestrained campaign finance ‘arms race.’ ” The brief was written by Steven Reiss of New York’s Weil, Gotshal & Manges. Possibly the most powerful amicus brief in favor of the law comes from former Senator Fred Thompson, R-Tenn., who chaired the Senate investigations into 1996 campaign finance abuses. In a brief written by David Frederick of D.C.’s Kellogg, Huber, Hansen, Todd & Evans, Thompson lays out the evidentiary record that he said justifies passage of the act. “That record exposed the worst of our system,” Thompson said. “Meetings and sleepovers in the White House for specially chosen contributors of high-dollar soft money, the alteration of policy to meet the demands of donors, and the use of soft money for advocacy purposes at an unprecedented scale.” Split among states Twenty states, along with Puerto Rico and the Virgin Islands, also weighed in to support the law. They argue that it does not intrude on state sovereignty, even though challengers say more than 30 provisions restrict state prerogatives, parties and political processes. The law forbids national parties from transferring funds to state parties. A brief by 10 states, however, argues that the law violates the sovereignty of states and should be struck down for that reason. Virginia, one of the states on this brief, is already being affected because it will hold some elections this year. The Chamber of Commerce, the National Association of Manufacturers and the Associated Builders and Contractors, all parties in the case, challenged the electioneering communication provisions as an intrusion on their First Amendment rights.

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