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December 9, 2002, 8:30 a.m. McCain-Feingold Goes to Court Two days on the scene. By Allison Hayward

What we view as rights they view as loopholes.
What they view as acts impeding reform, we view as freedom.
— Floyd Abrams, December 4, 2002

ast week, the ceremonial courtroom in the Washington, D.C. federal courthouse hosted two days of oral arguments in the trial to test the constitutionality of the Bipartisan Campaign Reform Act (BCRA). Even this spacious location required some extra seating to accommodate the case, in the form of large folding tables set before the three-judge panel for the numerous attorneys arguing for the very numerous parties in the case. Luminaries like Ken Starr, Floyd Abrams, and Seth Waxman sat elbow to elbow with their associates. The audience, too, was chock-full of counsel. Chances are that the entire roster of pundit attorneys that talked the nation through Florida 2000 attended, along with Common Cause's Fred Wertheimer, the NRA's Wayne LaPierre, Senator Mitch McConnell, and several members of the Federal Election Commission.

The trial began on Wednesday with the issues raised by Title I of BCRA, the so-called "soft money" ban on political parties and federal candidates. Judge Starr began the argument for the plaintiffs challenging the law, arguing that the breadth of BCRA reaches state election activity that is properly the subject for state, not federal regulation. Deborah Caplan, representing the California Democratic party, took up the argument, and showed the court four state-party handouts that, while distributed in state-and local-election contexts, would be regulated under BCRA as "federal election activity." As a result, these materials (which before used funds raised under California law) would be federal expenditures subject to all the rules and limits Congress places on federal campaigns. Bobby Burchfield, for the RNC, showed the court that, under BCRA, a national party chairman's fundraising letter on behalf of the party's nominee for governor in, say, Virginia, would be a felony. Burchfield also pointed out the irrational consequence of Title I's restrictions on parties, by relatively strengthening special interest groups.

Providing a break from the parade of established election lawyers, Sheri Wyatt, representing Congressmen Bennie Thompson (D., Miss.) and others, argued against Title I because of its impact on voter registration and public-education activities in the rural African-American precincts represented by her clients. Herb Titus, representing Congressman Ron Paul, some Libertarians, and others, discussed the law's infringement on freedom of the press, and his interesting contention that this freedom is exercised by parties and individuals in their campaign activity.

In reply, the FEC, represented by Richard Bader, argued that the soft money fundraising system was inherently corrupt. He defended the law's criminalization of fundraising by national-party officials for state candidates, claiming that since a party was a unit this broad scope was justified. These broad prohibitions were required as "prophylactic rules" to protect government from corruption. Since BCRA really just regulates national-party finances, Bader contended that the law did not violate principles of federalism.

Roger Whitten then spoke for the Interveners — McCain, Feingold, and others. He supported his assertions that the record showed corruption by flourishing a sealed document before the court, claiming that the document was so embarrassing the corporation who had produced it would not allow its release. Some attorneys present saw this as an abusive tactic done in bad faith. Other documents Whitten presented contained statements about soft money fundraising and legislation, so one could assume that this sealed document was of that sort, and probably unnecessarily cumulative. A judge asked Whitten to address the First Amendment concerns raised by the law. Whitten replied that the government had a competing First Amendment interest in protecting federal elections, which is probably a novel interpretation of the first amendment. This conduct, plus a gratuitous Whitten objection interrupting one of the last arguments of the second day, earned Whitten the honor of "most smackable" attorney in the trial.

Through the first morning the judges raised questions about the standing of the state parties — that is, whether they could properly raise a federalism issue, or whether that issue would need to be raised by a state government as an abridgment of the Tenth Amendment. Counsel responded that standing was properly with these parties in claiming that Congress lacked power to regulate their state political activities.

After the lunch break, the arguments moved to Title II of BCRA, which regulates certain broadcast communications run within 30 days of a primary or 60days of a general election. Floyd Abrams began by telling the judges that Title II criminalizes speech by corporations and unions, regardless of what it says, if it refers to a candidate. Although people (especially incumbents!) may not like attack ads, Abrams said that they are "deeply protected" by the First Amendment. Abrams noted that the law covered broadcasts but not print advertisements, which didn't make much sense and should prompt skepticism about the author's real motives. Laurence Gold, representing the AFL-CIO, and Joe Gora, representing the ACLU, added that the period before an election is a time of intense legislative effort and public attention, and a particularly useful time to present information about issues and candidates. Gora noted that members of organizations like the ACLU may fear the exposure that PAC reporting requires, so running advertisements through a federal PAC is no alternative. Chuck Cooper, representing the NRA, added that in its situation the corporate electioneering ban served no anti-corruption purpose, since the activity was independent, and done by an ideological group that exists for this sort of thing.

The government's defense of the electioneering ban began with evidence that ads mentioning candidates peak before elections. One judge asked whether it was appropriate to lump together ads with prominent identification of well-known sponsors with ads from shell organizations. Another question about the government's specific evidence of corruption went unanswered. The government also argued that the express advocacy standard, which under existing case law allows only regulation of exhortations to vote for or against a clearly identified candidate, was merely a statutory construction and not a constitutional rule. The broader law is justified because corporate and labor activity is inherently corrupt, and issue advertising is no different from express advocacy. At 5 P.M. of this first day, Seth Waxman addressed the court, and took up the last argument with vigor, inviting the court to scrutinize passages in Buckley v. Valeo dealing with express advocacy. This is an odd strategy for the Interveners, because those passages, read in their entirely, show the constitutional basis (in the Buckley court's view) for the express-advocacy standard — exactly what Waxman's side is arguing against. At this point your humble correspondent left Mr. Waxman's presentation to have a glass of scotch.

Friday in Washington began with a snowstorm. Ordinarily this means that everyone stays home, but not in this court. Courageously, counsel made their way through the slush to argue important, but more arcane, parts of the case. One topic at issue involved the coordination of issue ads with candidates, and in what situations coordination could turn protected independent speech into a contribution. But the big news in this area was made, not in court, but at the FEC, where the agency finally gave the public some guidance. This day's arguments dealt with the party independent expenditure restrictions, the ban on contributions by minors, the increase in the contribution limit and the additionally generous limits applicable when candidates (often incumbents) face millionaire opponents, and new requirements of broadcasters.

The court energized the courtroom at the end, however, by promising to unseal the documents in the case unless counsel could convince them — document by document — not to. Excited lawyers asked numerous questions about how to handle documents from third parties not before the court, and documents obtained from confidential investigative files. The court appeared willing to entertain these factors in its decisions about releasing specific documents, but the general message from the bench was that unless good arguments came their way, the sealed evidence would be unsealed.

The prospects appear decent for overturning at least some of BCRA. This case illustrated the lawyer's maxim that when the law is against you — argue the facts. The law is against the government and the Interveners in many respects, so it is no surprise that they resorted again and again to florid descriptions of the evidence. The problem is that the judges could see this, and continued to ask these counsel to tie the record to the legal standards. Sometimes they tried, and sometimes they changed the subject. But the challengers bear a heavy burden of their own, because this case is a "facial" challenge to the law, rather than an "as-applied" challenge made in the face of a specific enforcement threat. Facial challenges require a higher showing since courts are (ideally) reluctant to strike legislation without seeing it operate in the real world. From comments made in court, it appears the panel will deliver its decision in January, and likely the Supreme Court will grant the inevitable appeal and hear the matter this term.

— Allison Hayward is an attorney and writer in California and Washington D.C.