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During an extraordinary four hours of scrutiny by the Supreme Court on Monday, key parts of the McCain-Feingold campaign reform law seemed in danger of being struck down as Chief Justice William Rehnquist, viewed as a swing vote in the case, expressed strong doubts about the constitutionality of the law. The Court took up McConnell v. Federal Election Commission at a rare September sitting, called to heed the request from Congress that it expedite review of the law, passed in March 2002. Advocates on both sides are hoping the Court will rule by December, before the 2004 presidential primaries begin. 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 Rep. 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. Few justices tipped their hand. Justice Sandra Day O’Connor, another potential swing vote, asked unusually few questions and seemed mainly concerned about how to draft a ruling striking down parts of the law in ways that would not entirely overturn the Court’s 1976 decision in Buckley v. Valeo. Lawyers criticizing the law struggled to answer that concern, knowing that if they ask the Court to strike down Buckley along with the McCain-Feingold law, they would be asking too much. Justice Clarence Thomas, who opposes virtually all forms of campaign regulation, characteristically asked no questions during the entire four hours. Not surprisingly, Justice Antonin 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. Also not surprising was Justice Stephen Breyer’s apparent show of support for the law, suggesting at one point that the law’s total ban on soft money donations to national parties could be justified on the basis of administrative convenience, because it would be “too hard” to determine which portions could legally go to state parties. But that prompted Rehnquist to reply that “when you’re talking about the First Amendment, ordinarily administrative considerations are not good enough” to justify speech restrictions. At another point he also said that “willy-nilly” regulations by Congress could not pass muster under the First Amendment, nor could restrictions that are subject to differing interpretations. Such 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.” On Monday, 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 argument, Loyola Law School professor Rick Hasen, a supporter of the law, had written 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.” 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 Kenneth Starr as “Mr. Starr.” But, 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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