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In the wake of an extraordinary four-hour Supreme Court session examining the McCain-Feingold campaign reform law on Sept. 8, the justice to watch appears to be the one who almost always is the key swing vote on hot-button issues: Sandra Day O’Connor. That unsurprising conclusion was the result of surprisingly harsh comments about the law expressed during the arguments by Chief Justice William Rehnquist, who had been the focus of attention going into the session. If Rehnquist now joins the three-member camp of those who usually oppose significant sections of campaign regulation laws — Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy — then the Court is split 4-4, with O’Connor holding the deciding vote. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer are usually counted as strong supporters of campaign finance laws, and they did not indicate any change of heart during the arguments. The Supreme Court took up the consolidated cases known as McConnell v. Federal Election Commission at a rare September sitting, apparently the first time the justices have convened in September since 1958. That was when the Court hastened the consideration of the landmark desegregation case Cooper v. Aaron so it could rule before the public schools in Little Rock, Ark., opened. This time, the Court was heeding a request by Congress, written into the 2002 Bipartisan Campaign Reform Act (BCRA), asking that it expedite review of the law. When the three-judge panel that ruled on the case did not issue its decision until May 2 of this year, the Court was left with few options that would allow it to rule before the 2004 presidential primaries begin. Having heard the cases in September, the Court could rule as early as November or December. The session, coming a month before the Supreme Court’s usual fall debut on the first Monday in October, drew hundreds of spectators in an almost festive mood, including most of the congressional sponsors of the law. Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.) sat in the front row of the public section, flanked by House sponsors Reps. Martin Meehan (D-Mass.) and Christopher Shays (R-Conn.). Also in the front row were Lady Booth, Solicitor General Theodore Olson’s friend, and Olson’s longtime assistant Helen Voss. Eight lawyers over four hours tried to persuade the justices, with strong performances by former Solicitor General Seth Waxman — now a partner at Wilmer, Cutler & Pickering — urging support of the law, and Floyd Abrams of New York’s Cahill Gordon & Reindel and Covington & Burling’s Bobby Burchfield arguing against it. Where Justice O’Connor will land was harder to predict than usual based on the arguments, though nothing she said contradicted her usual reluctance to hand down sweeping rulings that overturn a swath of precedent. She seemed mainly concerned about how to draft a ruling that would reject parts of the new law without entirely overturning the underlying post-Watergate campaign-finance law that was partly upheld in the Court’s 1976 decision in Buckley v. Valeo. “Is the pre-BCRA regime invalid too?” O’Connor asked former Solicitor General Kenneth Starr. “Not at all,” Starr replied quickly. Throughout the arguments, lawyers criticizing the law struggled to answer the concern expressed by O’Connor and others, knowing that if they asked the Court to strike down Buckley along with the McCain-Feingold law, they would be asking too much. By the same token, supporters of the law, when asked skeptical questions by the justices, cited the Court’s own Buckley decision and other rulings as justifications for the law. Advocates said the new law, as complex as it is, merely builds on the Buckley foundation. Justice Thomas, who opposes virtually all forms of campaign regulation, characteristically asked no questions during the entire four hours. Not surprisingly, Scalia attacked the law at every turn, at one point reading aloud the text of the First Amendment. “It’s a very simple text,” said Scalia, adding that restricting campaigns was unheard of at the time of the Framers. As vocal as Scalia was against the law, Breyer’s lengthy questions showed showed strong support for it — which then provoked Rehnquist to voice his doubts. When Breyer suggested that one part of the law could be justified on the basis of administrative convenience, Rehnquist interjected that “when you’re talking about the First Amendment, ordinarily administrative considerations are not good enough” to restrict speech. Rehnquist’s criticisms mounted. He said that “willy nilly” edicts by Congress could not pass muster under the First Amendment, nor could restrictions that are subject to differing interpretations. Such ambiguous regulations might be OK “under the tax code,” Rehnquist said, but not under the First Amendment. Rehnquist also asserted that Congress had presented a “dearth of evidence” that corporate contributions had resulted in “quid pro quo” actions by members of Congress. Waxman replied that the evidence was “overwhelming” that “access buys influence.” The chief justice even went so far as to suggest he had made a mistake in 1990 when he voted with the majority in Austin v. Michigan Chamber of Commerce, which upheld a state law barring the use of corporate funds for campaign expenditures. The Austin ruling is the main underpinning for McCain-Feingold’s provision barring electioneering ads paid for by corporate or union treasury funds. One of the rationales for Austin was that huge corporate treasuries “have little or no correlation to the public’s support for the corporation’s political ideas.” But during the BCRA arguments Rehnquist cast doubt on that reasoning, suggesting that the “whole purpose” of the First Amendment is to allow the expression of views that may not be popular. Supporters of the law assert that electioneering ads can still be aired if they are paid for instead by union or corporate political action committees — rather than directly from corporate coffers. But opponents seemed to make some headway in convincing the Court that forcing the use of PACs was not a satisfactory alternative and would limit speech. “There are burdens, serious burdens, in having PACs,” said Abrams. Within minutes of the end of the arguments, Loyola Law School professor Rick Hasen, a supporter of the law, wrote on his widely read “Election Law” Web log that, based on Rehnquist’s questions, “The Court could conceivably reverse Austin and allow unlimited corporate and union expenditures.” The arguments also included 10 minutes of discussion on one of the least popular provisions of the law, the one completely prohibiting people under 18 from contributing to campaigns. The ostensible reason for the flat ban was to keep parents from evading contribution limits by using their children as conduits. But little evidence on the point was provided, and the lower court — which split on most provisions of the law — struck it down unanimously. Jay Sekulow of the American Center for Law and Justice told the Supreme Court the provision restricted the speech of minors who may well have their own resources to spend on candidates they believe in. Several justices asked if the law would be on firmer ground if it banned donations from kids under 10, or 8 years old, or even 18 months old. Sekulow said those would be “a closer case.” Breyer asked why it was not reasonable for Congress to draw the same age line in this context that the Constitution used for the right to vote. “The right to speak is not contingent on the ability to vote,” said Sekulow. Moments of levity punctuated the lengthy arguments, as increasingly punchy justices and lawyers slogged through the complex legislation in far greater detail than the usual one hour of argument allows. For most of his presentation, Olson referred to his predecessor at the lectern and adversary Starr as “Mr. Starr.” But, as he was being rattled by questioning from the Court, Olson suddenly began referring to him repeatedly as “Justice Starr,” one of the few official titles the former solicitor general, appeals court judge, and independent counsel has never held. Justices could not contain their laughter, and Olson finally realized his mistake. Smiling at Starr, a partner at Kirkland & Ellis, Olson said, “I guess we’ll have to wait for that.” At another point, when AFL-CIO Associate General Counsel Laurence Gold rose to speak, Scalia looked at him quizzically. “You’re Laurence Gold?” Scalia asked, as if some interloper had seized the lectern. It was a case of mistaken identity that frequently dogs Gold, who is considerably younger than — and not related to — another lawyer by the same name, a frequent high court advocate who used to be the AFL-CIO’s general counsel and is now of counsel with D.C.’s Bredhoff & Kaiser. The younger Gold took Scalia’s query in stride, noting that Court rules bar lawyers from identifying themselves in any detail. Scalia finally seemed to get it and shrugged, saying, “You’re not the Laurence Gold I expected.”

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