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.
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.
Paul Clement takes over defending the statute and he, unlike Olson, seems to have hypnotized himself into really liking campaign-finance reform. Like Olson's, much of his presentation consists of a rather protracted conversation with Scalia. Like Olson's, his answers to a good many of the court's questions are: "Because you said so." But unlike Olson, he quotes Austin instead of Buckley back at them. Scalia rushes to point out that he was in the dissent in Austin. Clement is forced to remind him, rather tartly, that Austin is still the law.
There is a final burst of anxiety among the brethren over the fact that the law bars corporations and unions and rich people from advocating for a candidate, but not the media. I confess that at this point I am slowly replaying the American Idol finals in my head, as Seth Waxman is left to finish making the case for BCRA; something he does elegantly—but for his confession that he doesn't much care how the case comes out.
At the end of the unprecedented four-hour session, it appears that, yet again, we'll be facing either a 5-4 or 4-4-1 decision, with—you guessed it—Sandra "Go Ahead, Make My" Day O'Connor as the deciding vote.
I suspect she'll worry more that the system is hopelessly and depressingly corrupt than about the free speech rights that can readily be redirected either into hard money or genuine issue ads. But she was sphynxlike today; speaking almost not at all. Still, I'm thinking she'd be delighted about the lunchtime female bonding in the first-floor ladies room.