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December
4, 2002, 8:30 a.m. By Allison R. Hayward |
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December 4 and 5, 2002, a special panel of the federal district court
for the District of Columbia hears oral arguments in McConnell
v. FEC, the omnibus mega-challenge to the Bipartisan Campaign Reform
Act (BCRA), commonly called McCain-Feingold. These two days promise to
challenge the judges (and observers) with arcane campaign accounting,
rouse them with invective, and possibly at the end of it all disabuse
them of the notion that congressionally mandated campaign reform can freshen
the political system like vinegar through a coffeemaker.
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We can also expect a clash of the titans as famous advocates from across the political spectrum participate in the arguments. The court panel is comprised of D.C. Circuit Judges Karen LeCraft Henderson (appointed by Bush I) and Colleen Kollar-Kotelly (Clinton), and District Judge Richard Leon (Bush II).
At stake are provisions in the law that regulate nonfederal or "soft" money, which is the money raised outside the federal limits by political parties for their nonfederal activities. Really big soft-money donations, disclosed as required under law (that's how we know about them, after all), provoke controversy. Reforms thus set forth to ban all nonfederal funding of party activity. So national parties may no longer raise nonfederal money, nor can federal officeholders (except in certain limited situations).
To do this, BCRA treads upon state and local party activity, allegedly to prevent circumvention of the national-party nonfederal-funds ban. But state and local parties see this as an intrusive burden that will prevent them from functioning. Since parties register voters, get out the vote, facilitate debate, and educate the public about issues, (all generally thought to be good things) it is a curious type of reform that seeks to cure a national-party "soft-money" problem by thwarting these local activities.
Another aspect of the challenged reform is its regulation of political advertising. An ad containing a message that refers to a candidate, for federal office and is targeted to that person's district, cannot be paid for using corporate or labor funds if the advertisement runs within the 30 days before a primary or the 60 days before a general election. Instead, the advertisers would need to raise the money for the message under the same restrictions placed on campaigns. Critics observe that the law unconstitutionally restricts public-education campaigns about legislation or other issues of the day.
Another set of reforms would use the concept of "coordination" to turn otherwise-unregulated conduct into regulated or prohibited campaign activity. That is, an individual may be able to do something (sponsor an ad, for instance) with his own money that a party or corporation could not. However, if the person "coordinates" with the party or corporation, then his activity becomes imputed to that other entity. Define coordination broadly enough, and the law can quietly capture a large amount of otherwise constitutionally protected conduct. The reform laws also prevent political parties from making independent expenditures if another party committee of the same political party has made a coordinated expenditure.
Arguing for the plaintiffs who are challenging these reforms (among them: Senator Mitch McConnell, the California Democrat and Republican parties, the Republican National Committee, the National Rifle Association, and the National Association of Broadcasters, to name a few) are luminaries Ken Starr, Floyd Abrams, Chuck Cooper, Laurence Gold, Bobby Burchfield, Jan Baran. California attorneys Deborah Caplan and Charles H. Bell Jr. will also speak before the panel. The interveners (Senators McCain and Feingold, among them) will call on Roger Whitten, Randy Moss, Brad Phillips, and Seth Waxman. The government will be represented by FEC attorneys Richard Bader, David Kolker, and Stephen Herschlowitz, and the Department of Justice's James Gilligan and Michael Raab.
Accompanying this week's arguments, the panel has before them briefs from both sides, and literally mountains of evidence. Though quite complex, the panel is expected to rule promptly on the case, which will be heard on appeal by the Supreme Court. Solicitor General Theodore Olson customarily argues the government's case before the Supreme Court. So, mark your calendars for the D.C. Bar equivalent of Celebrity Jeopardy next spring, as defending-champ Ted Olson goes up against Ken Starr and Floyd Abrams at the Supreme Court before a live audience.
Readers eager to see briefs, motions, and other documents can find them here.
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