High Court Set to Rewrite Campaign Law
By Charles Lane
Washington Post Staff Writer
Saturday, May 3, 2003; Page A01
The inevitable appeals of yesterday's federal district court ruling on the McCain-Feingold campaign finance law will set the U.S. Supreme Court on the road to its second foray into national politics in as many election cycles.
Although this time the case will not decide the outcome of a presidential election, as happened during the Bush v. Gore clash in 2000, it will do something almost as consequential: write the rules by which a presidential campaign, already in progress, will be conducted.
And unless the justices dramatically alter their schedule to accommodate the campaign finance case in the two months remaining in their current term -- a scenario legal analysts consider unlikely -- the court's ruling on a myriad of often technical constitutional questions having to do with the getting and spending of campaign cash will emerge uncomfortably near the time the first primary voter of 2004 casts a ballot, at the earliest.
For the justices, who split 5 to 4 along liberal-conservative lines in the 2000 presidential election case, and who are similarly divided on many other issues as well, the campaign finance case poses potentially staggering challenges, legal and logistical.
As a legal matter, the case requires the court to interpret the campaign law in light of the 1976 decision known as Buckley v. Valeo. In that case, a challenge to Watergate-inspired reforms, the court weighed the government's interest in preserving the integrity of elections against claims that money is the lifeblood of free political communication.
Broadly speaking, Buckley established the proposition that the First Amendment permits the government to limit campaign contributions but not campaign spending.
Campaign reform advocates blame Buckley for creating a "loophole" through which rich donors poured millions in unregulated "soft money" to the parties, and for the failure to control spending by unions, corporations and interest groups on "issue ads" that target or promote individual candidates.
But many campaign reform opponents are also dissatisfied with the ruling, noting that even Buckley's limited endorsement of campaign finance regulation goes too far.
On the current court, the more liberal members -- Justices John Paul Stevens, Ruth Bader Ginsburg, David H. Souter and Stephen G. Breyer -- have shown the most sympathy for campaign finance regulation.
Justices Clarence Thomas, Antonin Scalia and Anthony M. Kennedy have shown the most skepticism.
Chief Justice William H. Rehnquist, who supported Buckley's contribution limits as an associate justice in 1976, and Justice Sandra Day O'Connor have tended to occupy a middle position. In 2000, they voted with the liberals in favor of a Missouri law that set limits on campaign contributions, reaffirming Buckley's holding that preventing the appearance of corruption is a sufficient rationale for regulation.
At the heart of the case headed toward the court now, however, are the questions of soft money and issue ads, neither of which the court has confronted since Buckley.
All told, though, there are more than 20 issues rolled into the mammoth case -- including such provisions of the law as a "millionaire's exemption" to contribution limits and a ban on donations by minors. Any one of these would have made for a significant Supreme Court case on its own. Yet the court must resolve them all at once.
Buckley, which also dealt with a multi-provision statute, was a formidable drafting task for the court. By the time the eight justices were done (Stevens, then a newcomer to the court, did not participate), they had produced a 138-page opinion for the court, plus 83 pages' worth of concurring and dissenting opinions.
The justices of the time dealt with the job by dividing the ruling into chapters, each assigned to a different member of the court. Having heard four hours of oral argument on Nov. 10, 1975, the court managed to get its opinions out the door by Jan. 30, 1976 -- an 81-day turnaround.
"The current court . . . should emulate the seriousness and open-mindedness with which the Buckley court undertook its inquiry," said Richard L. Hasen, an election law expert and professor at Loyola Law School in Los Angeles, in a recent article about the drafting of Buckley.
Like the justices in the Buckley case, the current court is under a congressional mandate to expedite consideration of the case. They are handicapped, however, by the fact that the district court -- which was under the same requirement to speed things up -- produced its phone-book-sized opinion in early May. Karen L. Henderson, a member of the three-judge district court panel, had once seemed to promise a January delivery.
Under the law, the parties to the case -- of whom there are more than 80 -- have 10 days each to notify the district court that they intend to appeal, and another 20 days after that to file briefs with the Supreme Court, according to Kathy Arberg, a spokeswoman for the high court. Those opposing the various appeals would presumably have time to file replies before the justices would formally decide whether to take the case.
But these procedures could be shortened, Arberg noted, if the parties agree on a joint motion to the court that would essentially ask the justices to take up the matter without further ado, and if they propose an accelerated briefing and argument schedule.
The court is scheduled to take its annual summer recess by the end of June.
In theory, it could so expedite the appeal, demanding accelerated briefings from the parties, that an oral argument could be scheduled in June and an opinion issued after that -- possibly even during the summer.
The court has held two such special sittings in recent years -- in May 1996 and June 1997 -- but those cases dealt with single issues, not a complex of issues as in the campaign finance case.
Also, the court is already wrestling with several difficult, high-profile cases, including two that will decide the constitutionality of race-conscious admissions at the University of Michigan's law school and undergraduate program.
More fundamentally, lawyers involved in the case noted, to try to rush the campaign finance case to a conclusion now would create the spectacle of the nation's highest court devoting less time to the matter than the court below it had done.
Instead, the court will probably hear the case next fall and try to issue a ruling as early as possible before the 2004 campaign is in full swing. However, even if the court matches the January 30 delivery date achieved by the Buckley court, it will not be as timely.
In 1976, the New Hampshire primary took place on Feb. 24; in 2004, it is slated for Jan. 27.
© 2003 The Washington Post Company
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