Listen to Dahlia Lithwick discuss this topic on NPR'sDay to Day.
Ted Olson, defending the law, talks about a century's worth of efforts to "curb the corrupting influence" of big money in elections that serves only to highlight the fact that a century's worth of reform is really not working. "Is every problem solvable?" asks Scalia, whimsically—if he is capable of whimsy. He is capable of quoting the First Amendment, however, which he now does again. And he points out that there is no free speech exception in the Constitution for "malefactors of great wealth." Then he and Olson spar over the possibility that Congress simply enacted BCRA to protect incumbents from challengers.
"Incumbents were doing very well under the old system," replies Olson, since 98 percent are re-elected. Scalia provokes him yet more: "Perhaps we shouldn't be so deferential to Congress ... where Congress is being self-interested." Olson argues that there is something wrong when, as was the case with the $500 million in soft money raised in the 2000 election cycle, 60 percent came from just 800 donors. Shortly thereafter, Olson proves that there really is a vast right-wing conspiracy when he refers, more than once, to his opponent in this case as "Justice Starr." He catches himself and quips, "I guess you'll have to wait."
Olson cites the bane of "the breakfasts, the lunches, the receptions, the dinners ... the relentless pursuit of big contributions." But Rehnquist cuts in to say that it's not a permissible basis for restricting free speech that congressmen are "tired of having to go to breakfast." Scalia coyly asks for some evidence that big donors actually purchased votes with these breakfasts.
Seth Waxman, who represents McCain, Feingold, and a host of other senatorial notables, is similarly asked to adduce proof that there are quid pro quos for the big money. This is so silly, it renders Waxman almost speechless. He concludes by quoting Scalia's question, "Is every problem solvable?" and says that the case is a "dialectic between people who want to use money to influence government and people who want to preserve faith in the system."
Well, he gets my vote. Rehnquist remains unmoved.
The chief forgets to give Burchfield his rebuttal time, so he gets it after lunch. And lunch features three women simultaneously operating breast pumps in the Employee Restroom on the first floor of the court. I just thought the chief justice would like to know that.
After lunch, we examine "issue ads" that have sprung up after Buckley. Issue ads pretend they are not saying "Vote for Homer," even while they are saying "Ned Flanders is soft on crime, mishandles state finances, and likes little boys." Floyd Abrams, representing McConnell, is a big fan of such ads—or at least he's not a fan of the false distinction between such ads and "Express advocacy ads" ("Vote for Ned!") that has pervaded the law for 25 years. Kennedy asks why not just "junk Buckley and start anew?" Say it with me now: Stare decisis—the doctrine that says you don't junk old cases lightly.
Breyer points out that such ads are not forbidden under the law, they just need to be paid for through a PAC and not corporations and unions. Abrams contends that PACs just can't raise as much money as corporations and unions. (We'll spend all afternoon arguing this point.) There is some discussion of whether an ad that says "Call Mayor Quimby and tell him ..." is an issue ad or an advocacy ad. Abrams is of the opinion that such ads really want people to make phone calls. The rest of us suspect that these ads are telling us to vote for Not Quimby.
Laurence Gold gets up to represent the AFL-CIO—also opponents of BCRA. He talks for about 35 seconds before Scalia cuts him off. "Are you Laurence Gold?" he asks. Yes, says Mr. Gold. "You're not the Laurence Gold I was expecting," says Scalia.
Gold also argues that PACs simply can't raise much money. Then Jay Sekulow argues against the provision of the law prohibiting minors from making contributions (such contributions often being From Dad). He seems to agree with Breyer that 6-month-olds can constitutionally be barred from donating funds to political parties.