Court, Bar, Brace For McCain-Feingold Argument

WASHINGTON — On most September days, the majestic U.S. Supreme Court chamber is empty except for the occasional lecture given to tourists about the architecture and history of the courtroom. But on Sept. 8 the high court will be packed to the rafters 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 is informally allowed in more routine cases. The argument was set in September — weeks before the court’s traditional opening on the first Monday in October — with the hope that the court would issue its ruling before the presidential campaign gets going in earnest. Never mind that 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 no matter what the outcome of the Supreme Court challenge, campaign money — like rising flood waters — will flow to its target no matter what congressional obstacles the court may uphold. But in the meantime, the preparations for the historic oral argument are under way, with a traffic jam of lawyers set to stand before the court, and a mountain of briefs for the justices to consider. “A large part of the challenge in preparing for the case is mastering the huge record,” says Bobby Burchfield of 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, all male, who will argue in the cases consolidated under the title McConnell v. Federal Election Commission, 02-1674, are two former solicitors general: Kenneth Starr, now in the D.C. office of Kirkland & Ellis, and Seth Waxman, now at Wilmer, Cutler & Pickering. The current SG, Theodore Olson, will also appear — making for an unprecedented confluence of legal firepower. The three will be aligned in a way that defies conventional politics. Waxman, President Clinton’s last SG, will join President Bush appointee Olson in defending the law. Starr, in most other respects a political bunkmate of Olson’s, will argue against it. “The case is full of confusions of that sort,” says Wilmer, Cutler’s Randolph Moss, who has worked with Waxman on the case. The arguments are so long that the high court will break for lunch partway through. 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. Abrams, the noted First Amendment lawyer, was recently in the news for defending satirist Al Franken against a suit by Fox News. Despite the crowd at the lectern, in the minds of many who have observed the legal maneuvering in the case, the lineup has one notable omission: Charles Cooper of D.C.’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 BCRA (insiders are calling it “Bick-rah”) to the Sedition Act of 1798 in arguing that the law bars the kind of communication that is essential to the NRA’s being. 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 won’t be addressing 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 in the race to the courthouse to challenge it, but it stepped aside to let Sen. Mitch McConnell, R-Ky., be the plaintiff whose name would be identified with the case through history. “It’s outrageous that the NRA won’t be before the court,” says solo practitioner Erik Jaffe, author of a brief challenging the law on behalf of the Cato Institute and the Institute for Justice. “People may not like what the NRA has to say, but it represents a gazillion members who believe in something and have associated with each other for a collective purpose.” Asked for comment, Cooper says, “We’re definitely disappointed we were not able to receive oral argument time.” But he adds that he has conferred with Starr and others on argument strategy and will be at one or more moot court rehearsals this week. “Our skirmish over oral argument is behind us.” Someone close to the challengers’ legal team says the decision was “not anything personal to the client or the lawyers. We just felt we could only pick so many lawyers before it would look to the court like an open-mike session.” The number of lawyers may have been kept within bounds, but 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. No brief from the military was filed in the campaign finance case, of course, although one lawyer defending the law jokes, “If there was a way, we would have gotten one.” But 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 Sen. 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 says justifies passage of BCRA. “That record exposed the worst of our system,” says Thompson. “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.” Twenty states, along with Puerto Rico and the Virgin Islands, also weighed in to support the law. Their brief argues that BCRA 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, which Fred Wertheimer, president of Democracy 21, describes as “the offshore banks” for national parties. Wertheimer was a principal outside advocate on behalf of campaign finance reform and is now a leading defender of the law. Burchfield — who argues that the law puts overly broad restrictions on national party participation in state party activities — says Wertheimer misstates the role of state parties. “Fred needs to get out of Washington and see the real world,” says Burchfield. Picking up on the Supreme Court’s recently displayed interest in foreign court precedents, defenders of the law filed a brief indicating that the restrictions in BCRA are “modest steps” compared with those of other nations, says the brief’s author, Christopher Wright of D.C.’s Harris, Wiltshire & Grannis. “The Supreme Court has increasingly recognized the value of looking beyond our boundaries when resolving constitutional issues,” Wright adds. Challengers of the law did not refute the international argument, though one advocate said, not for attribution, “International precedent may be useful in some areas of the law, but in this area, we have something the rest of the world does not have: the First Amendment.” But the challengers did counter the defenders on the issues of federalism and big business. An amicus brief by 10 states argues that BCRA 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. “States have responsibility for conducting state elections and have adopted their own campaign finance rules reflecting the different choices of their citizenry,” the states agreed in a brief written by Craig Engle of D.C.’s Arent Fox Kintner Plotkin & Kahn. The Chamber of Commerce, the National Association of Manufacturers and the Associated Builders and Contractors, all parties in the case, challenged the electioneering communications provisions as an intrusion on their First Amendment rights. “BCRA threatens broad and vague new restrictions on the ability of corporations (and labor unions) to speak, associate and petition the government,” wrote Jan Baran of D.C.’s Wiley Rein & Fielding. The thousands of pages and appendices from parties and amici curiae were submitted under so much deadline pressure that some were filed first on typewritten “page-proof” pages this summer, with smaller bound and printed versions, in the customary 6-inch by 9 1/2-inch booklets, to follow later. But then an order came from the high court: The typewritten versions had to be converted to printed booklets immediately. Says one lawyer in the case: “The speculation was that one of the justices was going on vacation and wanted to pack light.” Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times. His e-mail address is [email protected].