Listen to Dahlia Lithwick discuss this topic on NPR'sDay to Day.
After four long hours of oral argument in 12 consolidated cases about the Bipartisan Campaign Reform Act of 2002, Chief Justice William Rehnquist is starting to get kvetchy. As former Solicitor General Seth Waxman rises a second time to defend the constitutionality of the law, Rehnquist gets a look that says, "Fifty pages of legislation that spawned over 1,600 pages of fractured appellate opinions that requires seven attorneys to argue multiple-roman-numeraled provisions over four hours just plain sucks." Finally, he points out to Waxman that the vast, complex law; the enormous lower court opinion; and the thorniness of campaign-finance litigation are just not what he wanted to be doing on what is still, technically, the court's summer vacation.
"It's not our fault," he whines. To which Waxman, giddy perhaps with exhaustion, or maybe because he has some seriously fantastic malpractice insurance, blurts, "In all seriousness, I will be one of the happiest people on the face of the planet when I sit down there," he waves to his chair. "Whatever you decide."
And this is the guy who's supposed to be passionate about the law.
His colleagues defending it include Solicitor General Ted Olson—whose boss John Ashcroft voted against the bill and whose boss's boss—George Bush—signed it into law, over strong personal objections, only because he was confident the high court would strike it down. And while I have watched Olson defend legislation he hates before, and warrant that he does it masterfully, today he seems to be going through the motions. Perhaps because he, like Waxman, is relieved that after slogging through briefs for 24 parties, and more than 20 amicus briefs, and the dread Lower Court Opinion ... he's grateful to be dumping it all into the chief justice's lap.
Congress passed BCRA in 2002, and the president signed it into law that March. It is currently in effect. The law sought to close many of the loopholes created principally by the last watershed campaign-finance case in 1976, Buckley v. Valeo. Provisions of the act include a ban on "soft money": unregulated funds donated to parties by wealthy individuals, unions, or corporations that increasingly buy government influence; and regulations prohibiting unions and corporations * from spending soft money on thinly disguised "issue ads" that attack candidates under the guise of issue advocacy. Other provisions of the act are on appeal today, including a ban on contributions by minors, disclosure rules, regulations on attack ads, and so forth. But the court will spend the morning on soft money and all afternoon on issue ads. The reason this is a First Amendment issue is that in these campaign-finance cases, the courts hold that to some degree, money equals speech.
It's hard not to be reductive when describing such complex litigation, but one way to frame this morning's discussion is to think of campaign-finance reformers as advocates of one element of democracy—Equality—while its challengers are advocates of another—Freedom. The fans of McCain-Feingold keep using words like "corrosive" and "corrupt" to describe the effect of huge infusions of unregulated funds on the political system. The challengers say "freedom"—as in speech, association, the rights of states—more times than you'd think anyone could in just four hours; Justice Antonin Scalia (who really, really hates BCRA) quotes the First Amendment at least three times by my count.
In recent years, the majority of the court has been more moved by the fairness/equality arguments than the free speech ones. Surprisingly, to some, Rehnquist has been a staunch champion of the preventing-the-appearance-of-government-corruption rationale for money limits in recent finance reform cases, including Austin v. Michigan Chamber of Commerce, a 1990 case that gets a lot of play this afternoon. But today it seems as if either Scalia or Justice Clarence Thomas sent their goons out back to thrash some sense into Rehnquist, because he is all about the freedom.
Argument is virtually an Ice Capades of former solicitors general, as Kenneth Starr, who served as SG under the first President Bush, faces off against Olson and Waxman. Starr, who looks so much like Justice Anthony Kennedy that one half expects them both to start patting at their hair simultaneously, describes BCRA as intruding "deeply into the political life of the nation" and warns that the effect of the law will be to destroy political parties and redirect dollars in the direction of "razor sharp interest groups." Starr, representing Sen. Mitch McConnell of Kentucky, offers the refrain that will ring out all morning: "BCRA goes too far." One thrust of Starr's argument is his claim that BCRA's prohibition against state and local parties spending soft money on federal elections fundamentally intrudes on freedoms to speak, associate, and pool funds.
Olson is followed by Bobby Burchfield, who is contesting the law on behalf of the Republican National Committee. He calls the law "fatally overbroad and nonsensically underinclusive." Justice David Souter calls Burchfield on his "BCRA goes too far" analysis, noting that measuring what is "past-too-far" is not a constitutional standard. "We don't have a scalpel," he says. Several times when Burchfield argues that this prohibits contributions (and thus speech), Breyer points out that BCRA doesn't prohibit what one donates, so long as one donates only hard money.
Burchfield continues to refer to the law as Orwellian, and eventually he and Breyer get down and dirty in a colloquy over Section 323 (B) (2) (b) (iv) versus Section 323 (B) (2) (c) that reminds me why I don't practice law.