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DLW
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Date Joined Apr 2003
Total Posts : 2457
| Posted 9/7/2003 10:21 AM (GMT -6) |   | McCain-Feingold gets its day in Court
http://www.workingforchange.com/art...fm?ItemID=15578
E.J. Dionne, Jr.
Washington Post Writers Group
09.05.03 Printer-friendly version
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Closing the loophole
McCain-Feingold gets its day in Court
WASHINGTON -- Imagine you're the co-owner of a business with two partners. You and one of the partners agree that substantial changes must be made to save your enterprise. The third partner opposes all changes. Finally, the situation gets bad enough that the two of you manage to push through some partial improvements.
Your recalcitrant partner says that your reforms will only make matters worse because they don't go far enough. But when you try to go further in response to his concerns, he tries to block those changes too. And then he goes to court to stop you from doing anything.
That's the situation confronting supporters of the Bipartisan Campaign Reform Act of 2002 as they go to the Supreme Court on Monday to make oral arguments in support of the law's constitutionality.
The law, passed with healthy majorities in both houses of Congress, is modest. It is aimed at making the campaign finance regulations work in practice the way they are supposed to work in theory.
Congress, upheld by the high court, long ago passed laws to limit the sources and size of campaign contributions in order to restrain big money's influence. But over the years, a giant loophole opened up which allowed corporations, unions and wealthy individuals to give unlimited sums to politics. This unregulated largesse became known as “soft money,” and the campaign reform act closes the soft money loophole.
But proponents of the big money system insist that whenever one loophole is closed, another will open. Outside groups would stop giving to political parties and use their money to run their own political advertising. The reformers took this into account and included a provision barring the use of unregulated money in the month before a primary and the two months before a general election for targeted advertising that explicitly named a candidate.
Under the new law, the various groups that have run so-called “issue ads" in the past are still free to influence election outcomes in those periods. But they would have to live under the same contribution limits and disclosure requirements that apply to normal political action committees. Loophole closed.
So why are opponents of campaign finance reform fighting hard to have the court knock out the issue ad provision even if it upholds the rest of the law? Because their real objective is to make sure that reform fails. That way, money can rule.
This is a radical position that could bring us back to the days before Teddy Roosevelt first started trying to limit corporate money's influence on politics. Chief Justice William Rehnquist, nobody's idea of a liberal, is likely to notice this. As Rehnquist put it more than a decade ago, Congress adopted campaign finance laws “to account for the particular legal and economic attributes of corporations and labor organizations.” For that reason, he said, the laws passed by Congress regulating the role of money in politics warrant “considerable deference” and reflect “a permissible assessment of the dangers posed by these entities to the electoral process.”
Nor should anyone believe the claptrap that this law would weaken political parties. This argument is demolished in an eloquent brief filed by a group of political scientists. They cite a particularly telling observation of campaign money expert Robin Kolodny, who notes that “soft money doesn't really make the parties strong; it makes the people who bring soft money to the party strong.” Exactly.
If opponents of the campaign law want to argue that it doesn't go far enough, its sponsors -- including Sens. John McCain and Russ Feingold -- would be the first to agree. The public financing system for presidential elections, which worked well for many years, needs to be updated. A voucher system might be created to allow all citizens to give, say, $50 to the political cause or candidate of their choice. Free media time, supported by tax credits for broadcasters, could sharply reduce the cost of campaigns. But if McCain-Feingold is struck down, the road to further reform would be washed out.
We Americans are proud of our system of democratic capitalism. The capitalism part creates wealth and guarantees that government doesn't control all the resources that can be used to advance political causes -- including opposition to the government itself. The democratic part allows government, within limits, to check concentrations of economic power and redress imbalances that capitalism can leave in its wake.
Campaign finance reform is aimed at making sure that wealthy and entrenched interest groups cannot buy out the political system and turn democracy into a fiction. That's why I'm betting that the Supreme Court will uphold McCain-Feingold.
Niebuhr thought that sustained moral energy in politics depended on religion's power to mobilize reason along with self-transcending love. The prophetic tradition, meanwhile, gave Jews and Christians some protection against the temptation to identify their social causes with God's will. Lincoln's second inaugural address expressed the prophetic insight, "The almighty has His own purposes." | | Back to Top | | |
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DLW
Registered Member
Date Joined Apr 2003
Total Posts : 2457
| Posted 9/8/2003 6:24 AM (GMT -6) | | High Court Hears Arguments on Campaign Finance Law
By DAVID STOUT
ASHINGTON, Sept. 8 — There will be mountains of verbiage, eight lawyers and quadruple the usual time devoted to arguments today as the Supreme Court listens to opinions on the campaign-finance law that Congress passed last year. Among the simple expressions that will take on added significance in the case are "fat cats," "mother's milk" and "special interests."
The justices are listening to the lawyers dissect or defend a 61-page statute whose basic ideas have already inspired countless debates.
Today's arguments — lasting four hours instead of the usual one hour — began to form about three decades ago, when the Watergate scandals brought unsavory disclosures of powerful people and interest groups giving enormous amounts of money to politicians, and perhaps wanting something in return.
The excesses of the Watergate era set off such waves of revulsion that Congress enacted limits in 1974 on how much people could donate to candidates for federal office, and how much the candidates could spend.
Whether money is viewed as "the mother's milk of politics" (in the words of Jesse Unruh, onetime Speaker of the California Assembly) or poison, or both, the issues are far from clear-cut. Foes of the campaign-finance law, led by Sen. Mitch McConnell, Republican of Kentucky, argue that its restrictions are unjustified and unconstitutional, violating Americans' rights to free speech and free association.
Supporters of the law counter that it is necessary to repair widespread skirting of old regulations, and that turning down the money spigots will not dry up the parties but rather force them to broaden their bases of donors.
And, of course, one politician's "fat cat" is another's scrupulous patriot, and "special interests" can mean big business or big labor, or something else entirely, depending on one's perspective.
No one really disputes that modern campaigns, especially those for the White House, are tremendously expensive, and that the well-heeled candidate has a big advantage.
In 1976 the Supreme Court ruled that, while it was constitutional to curb donations to candidates, it was an unconstitutional infringement on free speech to limit what the candidates could actually spend.
This ruling, in Buckley v. Valeo, either gutted the 1974 reform legislation, or reimposed a degree of sanity, depending on who is arguing. (The case took its title from Sen. James L. Buckley, a one-term Conservative Party legislator from New York, and Francis R. Valeo, Secretary of the Senate at the time.)
The ruling stirred the creative juices of politicians and lawyers. They came up with subtle ways to let people and organizations give money to benefit the parties of their choice, without officially giving money to benefit specific candidates, at least theoretically.
Such unrestricted money from corporations, unions and individuals became known as "soft money," and many critics said it continued the long-time contamination of American politics. The flood of soft money continued unabated into the 1990's.
But in 1995, two senators with not much else in common teamed up to introduce legislation to really limit the influence of money in politics. They were John S. McCain, Republican of Arizona, and Russell D. Feingold, Democrat of Wisconsin.
Senators McCain and Feingold first introduced their legislation in 1995. But time and again their bill, and companion legislation in the House, failed to gain traction.
Mr. McCain and Mr. Feingold (and their chief allies in the House, Representatives Christopher Shays, Republican of Connecticut, and Martin T. Meehan, Democrat of Massachusetts) gained crucial support in 2002, following the collapse of the Enron Corporation and the accompanying spotlight on corporate shenanigans and political donations by corporate interests.
Campaign-finance legislation finally passed both Houses by comfortable margins early in 2002, and President Bush signed it.
The legislation's main features were to ban soft money and curb advertising by unions, corporations and nonprofit groups. Offsetting those limitations were increases in the amount of "hard money" that individuals could contribute directly to candidates, to $2,000 from $1,000 per election, with increases for inflation.
The law took effect after last November's elections. In May, a panel of three federal judges struck down the law's ban on soft money but said the parties could not use it to pay for televised "issue" advertisements in the weeks before Election Day.
The panel stayed its ruling, meaning that the law remains in effect until the Supreme Court rules. There has been considerable speculation that the justices would like to decide the case by the time the 2004 campaigns begin in earnest. The high court could leave some provisions of the McCain-Feingold law intact while undoing others.
There is also a good interactive feature at the NYTIMES today and here is a link to the many briefs that have been filed on this law...
http://supreme.nytimes.findlaw.com/docket/2003/september.html
dlw
Niebuhr thought that sustained moral energy in politics depended on religion's power to mobilize reason along with self-transcending love. The prophetic tradition, meanwhile, gave Jews and Christians some protection against the temptation to identify their social causes with God's will. Lincoln's second inaugural address expressed the prophetic insight, "The almighty has His own purposes." | | Back to Top | | |
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DLW
Registered Member
Date Joined Apr 2003
Total Posts : 2457
| Posted 9/8/2003 3:29 PM (GMT -6) | | JEFFREY BROWN: It was just last year that Congress passed, and President Bush signed, the bipartisan Campaign Reform Act of 2002, more commonly known as "McCain-Feingold" after its two leading Senate sponsors. It was widely seen as the most sweeping reform of campaign finance laws in a quarter-century, and it was immediately challenged in court.
Today, the Supreme Court held a highly unusual session in the midst of its summer recess, and heard four hours of arguments from opponents and supporters of the new law. Our regular court watcher was there and joins us now, Jan Crawford Greenburg of the Chicago Tribune.
Welcome, Jan.
JAN CRAWFORD GREENBURG: Thank you.
An irregular Supreme Court session
JEFFREY BROWN: Maybe the first thing to talk about is just how unusual today's session was. It's not the famous first Monday in October when the court usually sits down. I read that this was the first time since 1974 that the court held a session like this.
JAN CRAWFORD GREENBURG: Right. It was quite unusual and even Justice Souter today made a remark that he had just gotten back from vacation in New Hampshire, where he's from, but the significance of this case and the very high stakes involved here and the importance of getting a decision quickly, because the presidential campaign is already under way, compelled the court to come back in the middle of the summer, a month early, and devote four hours to deciding a multitude of issues that are at stake.
JEFFREY BROWN: The authors of the law even inserted a provision into it which would provide for speedy judicial review.
JAN CRAWFORD GREENBURG: That's right. And this case comes directly from a special three-judge court that tackled all these issues below and the law itself, as you mentioned, provided that from there it would go straight to the Supreme Court so the law knocked out one middle, you know, appellate review to get it right to the court so that it could get the decision and get the guidance on campaign financing in time for the 2004 presidential campaign.
JEFFREY BROWN: So what was it like in the courtroom today?
JAN CRAWFORD GREENBURG: Well, it certainly had an interesting feel because it was hot outside, more so than we normally see. And there were quite long lines of people waiting to get in the courtroom and in the courtroom itself, reflecting again the high stakes here, the millions of dollars that are on the line in terms of how campaigns are financed in any given campaign where countless senators -- McCain and Feingold and Shays and Marty Meehan all the sponsors of this legislation as well as the opponents, Mitch McConnell who has challenged it and countless lawyers, lawyers who are representing the political parties and political operatives so it had a very important feel. It was filled with important people all to hear, as it should be, a very important case.
JEFFREY BROWN: Now you said it lasted for four hours. That also was very unusual. Usually it's one hour. Why four hours?
: This case is so complex. In fact, the challengers and the supporters can't even agree about what Congress was up to when it was passing the law in the first place. It's so complex that...and there are so many issues at stake in this law that overhauled the entire campaign financing system. It's one case, sure, but we should think of it as a whole bunch of cases all rolled into one because there were a whole bunch of issues that the justices grappled with today.
JEFFREY BROWN: Now the court tried to simplify it a bit. And we're going to follow the way they did it. The morning session was focused on the subject of soft money.
JAN CRAWFORD GREENBURG: Right.
JEFFREY BROWN: And the new law, McCain- Feingold says that it bans political parties from accepting unlimited contributions from corporations, unions or individuals.
JAN CRAWFORD GREENBURG: Right.
JEFFREY BROWN: So the opponents to that law spoke first. What was the core of their argument against it?
JAN CRAWFORD GREENBURG: Well, they argued that it violates the constitutional rights of people to engage in political discourse, and they said, look, I mean their bottom line was that, look, Congress isn't so worried about closing loopholes or preventing corruption, all the things that the supporters of the law say, Congress was worried about protecting its own interest and this law, this... these new limitations on our ability to raise money will infringe the First Amendment rights, the free speech rights of political parties, of corporations, of wealthy individuals, and they will have a very damaging impact even on the state political parties, for example, which will... it will limit their ability to raise their money and do different kinds of get-out-the-vote campaigns in even state elections.
JEFFREY BROWN: The court this afternoon released an audio tape which also again is unusual.
JAN CRAWFORD GREENBURG: Yes, only a couple of times we've had that.
JEFFREY BROWN: Right. So we have an exchange here. We have a bit of the opening statement from Kenneth Starr of Whitewater fame and the former solicitor general, arguing against the law - a little bit of his opening statement and then an exchange with Justice Breyer. Let's listen to that. I should say to our audience that you'll hear references to BCRA, which is the Bipartisan Campaign Reform Act. That's the official name for McCain-Feingold. Let's listen to that.
The justices' concerns
AUDIOTAPE:
KENNETH STARR: Title I of BCRA along with Section 213 intrudes deeply into the political life of the nation, and does so in a way that not even the most ardently nationalist of the founding generation would have countenanced. The upshot is not only a federal intrusion into state and local activity at the grassroots level, but a significant diminution in speech and associational activity by parties.
STEPHEN BREYER, Justice, U.S. Supreme Court: I gather this statute was passed because... "Let's call him Joe Wealthy wants to write a check for $10 million to help his favorite candidate Smith get elected," and they figured out a way. Who "they" is is named in the lower court opinion but we'll just say "they." They figured out a way despite the prior law to do it. It would pay for "get out the vote," it would pay for voter registration, and it would pay for issue ads which didn't say "vote for Smith." What they said was "Jones, his opponent, is a real rat. Go tell him what you think of him, okay?" Now, that was the problem.
And the solution is to say, one, all pennies spent by the federal committee are federal and though the limitations of $50,000 a year in total apply. Two, the state is home free, does anything it wants where there are only state candidates on the ballot, but where there are state and federal both on the ballot we will allocate and then it sets up a highly complex system of allocation. If that first allocation is okay, why isn't this new allocation okay?
KENNETH STARR: Several responses. First, let me begin with the beginning of your hypothetical, large contribution from the major donor. The Hagel Amendment addresses that. Now with respect, that is, let's limit the contribution, which after all is the fulcrum of concern, namely the possibility of corruption or, as this Court articulated in "Trent Missouri vs. Colorado Pact, Article 2," undue influence, but there comes a point where Congress goes too far in failing to accommodate the state interest.
JEFFREY BROWN: Okay, Jan, now what is Justice Breyer concerned about there?
JAN CRAWFORD GREENBURG: Well, as we saw here and as he said on several occasions today, he is very concerned about loopholes. He suggested that this law was just designed to close those loopholes. Now, remember, before this law, we were operating under a system where Congress had put in place the limitations on the amount of money that you could contribute to the candidate, but it didn't have any limitations on what you could give to the political parties. That's the soft money.
So these parties, as Justice Breyer says then, in turn would take all this unlimited money, these huge big money donations and then funnel them to the state and local committees where, then, they would sometimes use them to support federal elections. That's what the Congress says it was addressing when it passed this law and Justice Breyer, worried about those loopholes is saying, well, is this really a big deal because the state and local committees can still work on efforts involving state and local elections.
Supporters of McCain-Feingold
JEFFREY BROWN: Okay, so next it was the turn of the supporters of the McCain-Feingold Act. What was the core of their argument?
JAN CRAWFORD GREENBURG: Again, they had a friend in Justice Breyer as several of the other more liberal Justices -- said that this law was critical to closing those loopholes, it was critical to preserving the integrity of the electoral process and that Congress had been sensitive to these First Amendment free speech rights of the corporations and the parties and the individuals and struck this fine balance between a law that would protect the electoral system and ensure that voters out there, the individual mom-and-pop voters didn't think that it had just become, you know, corrupt by these large money donations.
JEFFREY BROWN: The lead attorney for the... in favor was Theodore Olson the solicitor general in the Bush Administration. We have a clip of him and an exchange that he with Justice Anthony Scalia. Let's listen to that.
AUDIOTAPE:
THEODORE OLSON, U.S. Solicitor General: For a century with the overwhelming support of the public, Congress has struggled to curb unregistered contributions in federal elections. Time and time again this court has agreed that achievement of that goal is critical to avoid erosion of public confidence in representative government to -- and I'm using the court's words -- to a disastrous extent. But concentrated wealth is nothing if not creative. As this court has observed, the history of campaign finance reform has been a cycle of legislation followed by the invention and exploitation of loopholes followed by more legislation to cut off the most egregious evasions in circumventions.
ANTONIN SCALIA, Justice, U.S. Supreme Court: What I conclude from this is that perhaps we shouldn't be so deferential to Congress in this matter. You know, in the area of separation of powers, we do not defer to Congress when Congress is in a head-to-head clash with the executive branch on separation of powers matters. Why? Because Congress is self-interested in that area. Why is it not the case that Congress is eminently self-interested in making laws that restrict the manner in which people can challenge their re-election?
THEODORE OLSON: There are several answers to that question. First of all, there's no evidence of invidious discrimination against challengers. Number two, the evidence supports overwhelmingly that incumbents were able to get reelected under the old system just fine and that overwhelming amount of evidence is not in the record, abuses in the system, that were not benefiting incumbents were tearing down faith of the American people in a system of government and making people believe that the more money that you put in, wanting to use the words of one individual, the White House is like a subway. You have to put money in the turnstiles....
ANTONIN SCALIA: Too much money, too much money. That's the problem. Too much money is being spent on elections.
Assessing the justices' opinions
JEFFREY BROWN: Justice Scalia, shall we say, is skeptical.
JAN CRAWFORD GREENBURG: Yes, throughout the arguments, the morning and the afternoon, he was quite hostile through his questioning to this law. And what he was getting at in that passage was that what some of the opponents of the law had suggested was that Congress is just looking out for its own interest with this law. It's imposing restrictions, for example, in the later session, the afternoon session, the restrictions on broadcast advertisements. Those kinds of restrictions Scalia suggested later on also were designed to protect the incumbents in Congress at the expense of the challengers.
JEFFREY BROWN: So we heard Breyer, Justice Breyer sounding in favor of the law, we heard Justice Scalia very skeptical about the law. Do we know based on past pronouncements or decisions how the justices are approaching?
JAN CRAWFORD GREENBURG: We went into this case, I think, most people thinking that the four more liberal Justices, Justice Stephens, Breyer, Souter, and Ginsberg would be inclined to uphold this law. Three of the more conservative Justices: Kennedy, Scalia and Thomas would want to strike it down. We weren't sure about the Chief Justice and Justice O'Connor. Today I thought... those that we thought stuck pretty true to form today.
But I thought that the Chief Justice today indicated that he might be inclined to side with his more conservative colleagues on this one. He seemed very skeptical about some of the provisions of the law and concerned about the free speech issues at stake. But Justice O'Connor, the one we always look to in the middle didn't tip her hand at all. She was largely silent today. In this case we're going to have to wait and see.
JEFFREY BROWN: As you say we're used to having Justice O'Connor as a swing vote but the Chief Justice, that's more rare isn't it.
JAN CRAWFORD GREENBURG: That's right. Although in First Amendment cases he's often very difficult to predict.
JEFFREY BROWN: In the afternoon, the subject was these issue ads. Tell us what the basis of the argument there was.
JAN CRAWFORD GREENBURG: This was again as the supporters said an effort to close a loophole and prevent corporations and unions from using money out of their general treasury funds to finance these what have been called so-called issue ads, that would run in the closing days of a campaign and sometimes refer or mention a candidate by name.
The restriction prevents those organizations from buying those kinds of ads unless they do it out of their political action committee money. So the supporters again and the supporters on the court seemed to think, well this is no big deal. They're not prohibiting these ads. They're just saying it has to be paid for by PAC money.
JEFFREY BROWN: And, Jan, the argument was expedited. Do we expect the decision to come quickly?
JAN CRAWFORD GREENBURG: I think most people... the court hasn't said, but most people expect it by the end of the year in time for the presidential campaign.
JEFFREY BROWN: Okay. Well, Jan Crawford Greenburg, thanks for walking us through this.
JAN CRAWFORD GREENBURG: You're welcome.
Niebuhr thought that sustained moral energy in politics depended on religion's power to mobilize reason along with self-transcending love. The prophetic tradition, meanwhile, gave Jews and Christians some protection against the temptation to identify their social causes with God's will. Lincoln's second inaugural address expressed the prophetic insight, "The almighty has His own purposes." | | Back to Top | | |
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DLW
Registered Member
Date Joined Apr 2003
Total Posts : 2457
| Posted 9/9/2003 4:25 AM (GMT -6) | | Justices Hear Vigorous Attacks on New Campaign Finance Law
September 9, 2003
By LINDA GREENHOUSE
WASHINGTON, Sept. 8 - The new campaign finance law came
under a strong attack at the Supreme Court today, with
lawyers for the statute's opponents warning that it would
weaken the national political parties, intrude on the
states' electoral systems and infringe on the free speech
of corporations and labor unions.
While defenders of the law offered abundant
counterarguments in the court's unusual special sitting -
the first time since the Watergate tapes case in 1974 that
the justices interrupted their summer recess to hear an
argument - its fate appeared highly uncertain.
By the end of an intense four hours of high-level advocacy,
it was far from clear that there would be five votes to
uphold the major provisions of the Bipartisan Campaign
Reform Act, a sweeping law that supporters describe as a
last chance to curb the flood of big money into national
politics.
The opponents' position that the court should strike down
the law without giving it a chance to work was "a counsel
of despair," Seth P. Waxman, the Congressional sponsors'
lawyer, told the court.
The act, commonly known as the McCain-Feingold law after
its Senate sponsors, bans the large checks to the political
parties known as soft money and restricts some television
advertising by corporations and labor unions.
The courtroom was crowded with lawyers representing the
dozens of plaintiffs, including the United States Chamber
of Commerce, the American Civil Liberties Union and the
National Rifle Association, which filed suit last year to
have the law declared unconstitutional. The Congressional
sponsors were in the courtroom audience as well. It was an
attentive audience attuned to every nuance of an argument
that sometimes resembled a daylong discussion of the
Internal Revenue Code.
Chief Justice William H. Rehnquist, widely seen as a swing
vote on a court that is closely divided in campaign
regulation cases, expressed skepticism of the law
throughout the argument. The morning session was devoted to
the ban on the receipt and use by the national parties of
soft money, including new restrictions on the ability of
the national parties to coordinate spending with and
transfer money to state and local affiliates.
Chief Justice Rehnquist at one point told Mr. Waxman that
his argument suggested "that the parties exist by the leave
of Congress." He added, "Surely that isn't the case." He
also questioned whether the anticorruption rationale of the
law applied as strongly to political parties as it did to
individual candidates.
Most of the afternoon session was spent on the law's
provision regulating "electioneering communications," which
are defined as televised issue advertising by corporations
or unions that refers to a "clearly identified" federal
candidate. For 60 days before a general election and 30
days before a primary, these may not be paid for directly
by corporations or labor unions under the new law. Rather,
the money must come from a political action committee set
up to raise money from shareholders or union members for
use in politics.
Chief Justice Rehnquist joined the majority in a 1990
decision that upheld Michigan's restrictions on campaign
spending by corporations. Today, he surprised many of the
election lawyers in the audience by describing that
decision as "dubious" and appearing ready to disavow it. "I
voted in the majority, but it seemed to me since then that
the whole purpose of the First Amendment is to allow people
who perhaps don't have much in the way of public opinion to
try to change public opinion," he said to Deputy Solicitor
General Paul D. Clement, who was arguing in defense of the
issue-advertising provision and who repeatedly invoked the
1990 decision.
At another point, the chief justice commented to Laurence
E. Gold, who was arguing against the provision on behalf of
the A.F.L.-C.I.O., that the court's precedents had
established that "it's not up to the government to decide
there is too much speech coming from one place and not
enough coming from another."
If Chief Justice Rehnquist proves as hostile to the new law
as his comments today suggested, the law's fate may be - as
has so often been the case in recent years - in the hands
of Justice Sandra Day O'Connor, who has not taken an active
part in the court's election cases and who said relatively
little today.
"Do you take the position that no effective regulation of
electioneering communications is permissible?" Justice
O'Connor asked Floyd Abrams, who represented opponents of
the provision, at the outset of his argument.
Mr. Abrams replied that the statute's definition of
electioneering communications was "so overbroad" that it
could not be sustained. Under previous law, as interpreted
by judicial and regulatory decisions, the only issue
advertisements subject to federal regulation were those
that used the "magic words" of express advocacy, such as
exhortations to "vote for" or "defeat" a particular
candidate. As a result, virtually all issue advertisements
have been able to escape regulation simply by avoiding
those words.
The justices who appeared favorably disposed to the new law
were, as expected, John Paul Stevens, David H. Souter and
Stephen G. Breyer. Justices Anthony M. Kennedy and Antonin
Scalia appeared strongly opposed. Justice Clarence Thomas
was the only member of the court who did not speak today,
but his previous opinions have made clear that he
interprets the First Amendment as barring nearly all
regulation of campaign finance.
Eight lawyers presented arguments today, 3 in defense of
the statute and 5 on behalf of 10 plaintiffs or coalitions
of plaintiffs who challenged the law's constitutionality.
The lead case in the group is McConnell v. Federal Election
Commission, No. 02-1674, named for Senator Mitch McConnell,
Republican of Kentucky, who was the law's chief
Congressional opponent.
With the lawsuits expedited under the terms of the statute,
a special three-judge federal district court here heard the
cases last December and issued a splintered decision in
May, striking down all or part of 9 of 20 challenged
provisions.
Thus nearly every party before the Supreme Court was
appealing part of the lower court's judgment and defending
another part. To avoid linguistic confusion over who was
appealing and who was defending, the court called those who
had filed the original lawsuits plaintiffs and those who
opposed the lawsuits defendants - labels that the Supreme
Court, which speaks in terms of "petitioners" and
"appellants," has hardly ever used.
The legal firepower in the courtroom was considerable.
Solicitor General Theodore B. Olson, fulfilling his duty to
defend acts of Congress even though his ideological allies
were nearly all on the other side, argued in defense of the
ban on soft money. He was joined by his immediate
predecessor, Mr. Waxman, the solicitor general in the
Clinton administration. Kenneth W. Starr, another former
solicitor general, was on the other side, representing
Senator McConnell.
Mr. Starr fashioned an argument intended to appeal to Chief
Justice Rehnquist and Justice O'Connor by characterizing
the law as a federal intrusion on state sovereignty. State
parties were restricted in how they could pay for even
"quintessential state activity" like get-out-the-vote
efforts, he said.
The justices spent more time than many people expected
exploring the federalism overtones of the case, including a
long discussion of complex formulas governing how the
federal and state parties are supposed to allocate
contributions.
The argument had moments of passion and of humor, with Mr.
Waxman, who alone among the eight lawyers had the burden of
arguing in the morning and in the afternoon, providing some
of each. He spoke forcefully in urging the court to look at
the "core" rather than the "capillaries" of the campaign
finance system. "We have a dialectic going on here between
people who want to use money to influence people in
government and the institutions that need to preserve a
sense of integrity and faith in the process," he said.
Toward the end of the four hours, Mr. Waxman said as he
answered a question from Chief Justice Rehnquist, "I will
be one of the happiest people on the face of the planet
when I sit down today, however you decide."
http://www.nytimes.com/2003/09/09/politics/09SCOT.html?ex=1064117078&ei=1&en=5dee5334587ab497
Niebuhr thought that sustained moral energy in politics depended on religion's power to mobilize reason along with self-transcending love. The prophetic tradition, meanwhile, gave Jews and Christians some protection against the temptation to identify their social causes with God's will. Lincoln's second inaugural address expressed the prophetic insight, "The almighty has His own purposes." | | Back to Top | | |
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