This was supposed to be the year one or more of the Supreme Court justices retired. Instead, as if to show they're still up to the challenge, all nine justices are cutting short their summer vacations and returning to Washington on Sept. 8, nearly a month earlier than usual.
It isn't just any dispute that could convince the nation's most powerful judges to leave the beach and head back to the bench. But the battle over the Bipartisan Campaign Reform Act of 1991 (BCRA) isn't just any dispute. The McCain-Feingold Act, as the law is better known, revolutionizes federal election campaigns by curtailing third-party advertisements and limiting soft-money donations to political parties. Supporters say such reforms will protect from the corrupting influence of big money. Opponents insist the law will eviscerate free-speech protections and will almost guarantee the reelection of incumbents (see sidebar).
Almost everyone, however, agrees that McCain-Feingold will forever change the face of American politics-perhaps in ways that no one, including the bill's most ardent supporters, could envision. Indeed, leading Democrats already seem to be rethinking the law they championed just two years ago. A new study shows that 92 percent of big-money donations ($1 million or more) in the 2002 election cycle went to the Democratic Party. That money would likely disappear if the court upholds McCain-Feingold, because the new law puts a $2,000 cap on individual donations. On the other hand the GOP, despite its fat-cat image, took in nearly two-thirds of the small donations that are allowed under McCain-Feingold.
The trend appears to be holding: In the second quarter of this year, President Bush raised some $35 million-more than all nine of his Democratic challengers combined. That new campaign math has created some strange bedfellows for next week's crucial oral arguments before the Supreme Court. Although he professed to sign McCain-Feingold under duress, President Bush has now directed his Justice Department to defend the campaign-restrictions law. Solicitor General Theodore Olsen is teaming up with his predecessor from the Clinton administration to argue that McCain-Feingold merely fine-tunes existing campaign laws that have already passed constitutional muster.
On the other side of the aisle is Ken Starr, who served as solicitor general under the first President Bush. Mr. Olsen's close friend and ideological ally believes that "McCain-Feingold has created fault lines in our political system that bode poorly for the long-term welfare of representative democracy," according to an article he wrote in The Wall Street Journal. "It threatens to balkanize American politics by empowering narrowly focused interest groups at the expense of political parties. In the process, McCain-Feingold is significantly suppressing core political speech in ways previously unknown in our law."
Among others, Mr. Starr will share his time with Laurence E. Gold, the associate general counsel for the AFL-CIO, and a lawyer for the National Rifle Association has also petitioned to join them. Membership organizations across the political spectrum believe the reforms muzzle free speech by prohibiting them from advertising on behalf of their favored candidates.
With heavyweights on both sides lining up to attack or defend campaign-finance reform, the Supreme Court has reserved an extraordinary four hours for oral arguments in the landmark case. And the justices have promised to rule quickly: Beach season may be ending, after all, but the 2004 presidential election season is just getting underway.