Posted on 12/04/2002 9:46:33 PM PST by Jean S
As he left the ornate courtroom after delivering the lead argument for striking down the new campaign finance law, Kenneth Starr turned to a fellow lawyer in the overflowing crowd and noted with a chuckle, "I usually don't quote Hamilton, it's usually Madison."
It was the kind of erudite quip that is likely to become commonplace as a star-studded cast of attorneys grapples over the future of the campaign finance system. The former Whitewater prosecutor, who kicked off two days of hearings challenging the constitutional validity of the massive McCain-Feingold law on behalf of the diverse group of plaintiffs headed by Sen. Mitch McConnell (R-Ky.), had just delivered a lengthy, professorial history lesson complete with readings from the Federalist Papers explaining how Congress overreached its authority when it banned political parties from raising millions of dollars in soft-money donations.
More than 250 lawyers, politicians, bureaucrats, staffers and journalists crammed into the sixth-floor courtroom to hear the biggest campaign finance case in a generation.
McConnell, who doesn't shy away from being characterized as the Darth Vader of reform efforts, sat stoically, listening to the arguments.
Sen. Russ Feingold (D-Wis.) also showed up, bolstering the ranks of a who's who of the campaign finance community. To buttress his argument, Starr reminded the three federal judges hearing the case that even Alexander Hamilton, who was arguably the most forceful proponent of a strong, centralized national government, didn't like the idea of interfering with how the states conduct elections.
"Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments?" Starr said, quoting Hamilton's writing in Federalist Paper No. 59.
Starr, perhaps realizing how affectionate a majority of Supreme Court justices are to arguments about the overreaching of federal power into state matters, concentrated the bulk of his argument on the federalism issue and seemed to limit claims that the soft-money ban was an impermissible violation of First Amendment rights.
The attorneys defending the law, though, hammered away on a theme voiced repeatedly during the long legislative debate - that the big, soft-money donations that have flooded the political system since 1978 have thoroughly corrupted nearly every aspect of American democracy.
Roger Whitten, a D.C. attorney representing Sens. John McCain (R-Ariz.) and Feingold, noted that the current campaign finance system has been "brought to its knees" by soft money and was "reeking of influence peddling."
He urged the three judges to read the affidavits and statements offered by numerous former Members of Congress who complained bitterly about the demeaning effect that chasing campaign dollars had on the crafting of legislation.
Of the three judges sitting on the special panel that will rule early next year before the case moves to the Supreme Court, U.S. District Judge Richard Leon, a key player in GOP circles before being named to the bench last year by President Bush, was the one peppering the attorneys with questions.
"Is there any evidence of corruption?" Leon demanded repeatedly.
Whitten handed over to the court a sealed document that he said came from a corporation that had given $100,000 donations to both political parties.
Whitten said that the tantalizing document described an activity so embarrassing to the corporation that they insisted it be filed under seal but added that it was an example of how soft money buys access to legislative power.
He cited a memo that showed how the pharmaceutical industry linked its own massive soft-money donations to the Republican Party directly to legislative efforts led by McConnell - evidence later disputed by McConnell attorney Floyd Abrams.
And, Whitten suggested, big money donations have stopped tort reform just like they stopped tobacco legislation. But according to Starr, the real harm is in what is being done to political parties.
Unregulated funds once raised ostensibly for get-out-the-vote and party-building efforts will be effectively forbidden and state and local parties in particular will feel the blow, Starr argued.
He said it was "staggering" that the new campaign finance law's ban on soft money sweeps traditional areas of state and local election activity into an area under federal control. The new federal election law regulations would act like a "dragnet" that would pull all kinds of activities traditionally handled by states under federal control.
The attorneys defending the law on behalf of Feingold and McCain, in contrast, focused almost exclusively on the corrupting influence soft money has had on politics since it was introduced in 1978.
In the afternoon, the three-judge panel turned its attention to another section of the new campaign finance law aimed at regulating issue advocacy.
Abrams delivered the plaintiff's opening remarks on the subject, arguing that "what we view as First Amendment rights, they view as loopholes" and stating unequivocally that the new law "criminalizes speech."
The new provisions specifically regulate any broadcast advertisements aired within 30 days of a primary or 60 days of a general election that specifically mention or depict a particular candidate for federal office, but Abrams called the restrictions too sweeping.
"It is a content-based restriction on speech on its face," he said, adding that it "doesn't matter what an advertisement says, so long as it refers to a federal candidate."
Abrams proceeded to show the court "movies," several examples of television ads that would now be deemed as electioneering communications under the new law. Abrams argued that each one of the so-called issue ads, despite their mention of specific officeholders, also dealt with clear legislative or policy issues and such speech "is the absolute core of the First Amendment."
"Attack ads are deeply protected by the First Amendment," said Abrams, who was brief, straightforward and to the point. "Speech can be vehement and caustic and say terrible things about public officials, but it's still protected by the First Amendment.
AFL-CIO lawyer Laurence Gold, who spoke after Abrams, argued that the lawmakers who authored the Bipartisan Campaign Reform Act had been fixated on rooting out negative ads and explained that the 30- and 60-day periods prior to an election are often "intense periods of legislative action" and that groups such as his should not be constrained from reaching out to lawmakers at those times.
James Gilligan of the Justice Department vigorously defended the electioneering communications provisions in the new law, showing his own videotapes of controversial commercials to try to make his point.
One ad, produced by the Christian Action Network, demonized former President Bill Clinton and wife Hillary Rodham Clinton, while the other ad, by the Republican Leadership Council, applauded former Rep. Rick Lazio (R-N.Y.). Neither ad had been subject to any campaign regulations because they did not contain any words of express advocacy, meaning they did not directly advocate the election or defeat of either candidate.
Presenting other facts and evidence to the court, Gilligan told the judges that this "political art form known as issue advocacy" had no other purpose than to influence elections and cited prior case precedent clearly allowing Congress to regulate such activity.
This afternoon, the Court will hear from another slate of lawyers who will argue the merits of everything from new coordination rules to the so-called millionaire's amendment.
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