fine print: What the lawyers will argue about


Issue: "As the West burns," Sept. 6, 2003

The extraordinary Supreme Court review of the McCain-Feingold campaign-regulation law, actually, is a consolidation of 12 separate cases. The court will confront some 20 issues, reviewing a lower-court decision issued in May that spans nearly 1,700 pages.

The scores of plaintiffs in these cases include Sen. Mitch McConnell (R-Ky.), the National Rifle Association and National Right to Life Committee, the Republican National Committee and California Democratic Party, as well as the Chamber of Commerce and the AFL-CIO. This diversity reflects the campaign-regulation law's wide-ranging impact.

The Supreme Court has set aside half of the scheduled oral-argument time-two hours-for two of the issues. The most important is the law's ban on "soft money" raised and spent by political parties (as opposed to "hard money" for individual campaigns). The lower court struck down the ban on national political parties using soft money for such things as voter registration and ID drives. It upheld the ban, however, on national, state, or local parties using soft money for ads, direct mail, or phone banks that promote/support or attack/oppose a specific candidate for federal office.

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Parties opposing Title I, represented by former U.S. Solicitor General Ken Starr, include Sen. McConnell, other federal and state elected officials, and national and state political parties. Those supporting it, represented by Solicitor General Ted Olson, include the Federal Election Commission, as well as the U.S. Senate and House members who championed the law.

David Thompson, a partner with Cooper & Kirk in Washington, calls the Republican Party's opposition to Title I "the biggest irony in this case." Mr. Thompson, who represents the NRA in this case, points out that while the two parties have raised soft money equally, the GOP far out-raises the Democrats in hard money. By taking soft money off the table, he says, the new campaign law gives Republicans a great advantage.

The first two hours will also focus on Section 213, which forces political parties to choose between spending regulated money coordinated with, or unregulated money independent from, nominated candidates. The lower court unanimously struck down Section 213.

The Supreme Court set aside 20 minutes to consider Section 318, struck down by the lower court, which prohibits persons under 18 from contributing to either political parties or candidates. Two young people, represented by the American Center for Law and Justice, are plaintiffs on this issue.

Perhaps the most important of the remaining issues involves Sections 201 and 204 of the law, which ban so-called "electioneering communications" by corporations or labor unions. The statute defines this as "an electronic advertisement that references a clearly identified federal candidate within 30 days of a primary/60 days of a general election." The lower court struck down this definition as too broad, and an alternative definition as too vague.

Cleta Mitchell, a partner at the Washington law firm of Foley & Lardner, is a well-known election-law expert who is also co-counsel for the NRA in this case. She said that the McCain-Feingold campaign-regulation law "changes forever" the right of Americans "to freely associate with groups, such as the NRA or political parties, for collective speech and political participation." The fundamental issue, she said, "is whether citizens can engage in voluntary political speech without interference by the federal government." A decision is expected by mid-December.


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