Campaign Finance Reform
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MARGARET WARNER: Does the latest attempt to reform campaign finance practices pass constitutional muster? That was the issue in a federal district court in Washington today, as supporters and opponents squared off over the McCain-Feingold campaign finance law that took effect November 6. That law bans national political party committees from raising so-called soft money, the unlimited contributions from corporations, unions, and others that the parties used to spend on non-candidate-specific activities like issue ads, get out the vote drives, and operating costs. The law also prohibits interest groups from airing political ads mentioning federal candidates close to election time.
For more on today’s hearing, we turn to a reporter who was in the courtroom, Neil Lewis of The New York Times. Welcome back, Neil.
NEIL LEWIS: Thank you, Margaret.
MARGARET WARNER: Set the scene for us today, this is an unusual proceeding with some strange bedfellows on either side.
NEIL LEWIS: Indeed. Quite an extraordinary proceeding because it’s a special three Judge panel provided for in the law that allows an expedited argument that will go quickly to the Supreme Court early next year. So of the strange alliances and lineups you have first of all perhaps the most striking is that the law is being challenged by the Republican National Committee and its most vocal opponent in the Senate, Senator Mitch McConnell — Republican of Kentucky. The principal defender of the law is the Bush administration. At the same time others challenging the law you have on the side the American Civil Liberties Unions, which contends it’s a violation of free speech by limiting spending and the Supreme Court once found and may still find that spending money many n political campaigns is the equivalent of free speech — the ACLU; the National Rifle Association. On the other side you have officials on the ACLU who disagree, so it scrambled traditional alliances.
MARGARET WARNER: And also very high-powered lawyers.
NEIL LEWIS: Indeed. Among them you have on opposite sides today two former solicitors general — Seth Waxman, arguing in favor of the law; he was a solicitor general — the chief government attorney before the Supreme Court — the Clinton administration; on the other side arguing the case in chief was Ken Starr who is back in for him a very comfortable environment after a very difficult stint as the independent Whitewater prosecutor. He clearly was quite confident today to be happy back in the environment. We know he was kind assailed during his tenure as a Whitewater prosecutor and he’s very intensively involved in sort of reputation rehabilitation now after that.
MARGARET WARNER: All right, now, Starr’s team, the opponents went first. What were the basic arguments they made?
NEIL LEWIS: The opponents of the law have two basic arguments one of the first amendment, that it’s an infringement upon free speech to limit campaign contributions. When people give money to candidates or parties, they are expressing their views and to limit would be to limit their constitutional rights to free speech. The other is it was an improper extension of Congress of its power over states, because many of the provisions in the McCain-Feingold law influence state races, because many of the contests are coordinated between state committees and the federal committee so, states now have to comply with this. That was their second argument. But the first amendment is the principal point of attack for the opponents of the law.
MARGARET WARNER: Then the supporters went second, since the opponents have brought the suits. So the supporters went on this afternoon and what was their basic thrust?
NEIL LEWIS: The supporters of the law said two things, this is within Congress’s power to prevent and limit corruption. And they provided many powerful examples of what to most of us is intuitive knowledge that people who donate money in political campaigns do so because they want something usually. Only a small percentage may just want to support the democratic process and provide compelling examples — an affidavit from Zell Miller Senator — Democrat from Georgia who described campaign fund-raising process he has to go through, he goes into a room – an aide hands a memo, be chatty and call this up person agribusiness, remind him you’re on the agriculture committee, call up the person in the banking business and remind him you’re on the banking committee. Other example that Roger Willen who was representing Senators McCain and Feingold, gave was a memo that was written for a lobbyist from Pharma, which is the trade organization for the pharmaceutical industry, on how it talk to, of all people, Senator McConnell, and it said, the memo said tell him what you’re after and remind him that the trade association has been very generous to these two Republican political campaign committees, one of which Mr. McConnell is chairman of.
MARGARET WARNER: How do the Judges, three Judges as you said, how active were me questioning the lawyers for the two sides and what, how did they respond?
NEIL LEWIS: Well, the chief Judge of the three Judge panel, one appeals court Judge and two district court Judges the chief Judge of the panel Karen Henderson remarked after hearing both sides initially on the issue of soft money said you’re like two ships passing in the night. The plaintiffs – the people attacking the law want to talk about freedom of expression and people supporting the law just want to talk about the corruption. You would please address each other’s points. So the lawyer for defending the lawyers said okay well, it is a First Amendment right to have people who don’t have the wherewithal to make donations have their voice heard but immediately went back to examples of corruption. Similarly, the other side stuck to its things.
MARGARET WARNER: So they really didn’t engage on each other’s argument despite the prodding from the Judge?
NEIL LEWIS: I don’t think they did. I think they both played their strongest hands and lightly dealt with the other side’s arguments.
MARGARET WARNER: How about the other Judges?
NEIL LEWIS: Well, Judge Henderson as well as one of the other Judges — Judge Leon, and they’re both Republican appointees, seemed quite skeptical of the supporters of the law a bit more sympathetic to the challengers on the First Amendment argument. For example, Judge Leon challenged the lawyers who supported the law repeatedly saying, well, we keep saying this creates the appearance of corruption but how about actual corruption, can you show actual corruption? And the lawyer said, well, it’s inherently corrupt than a influence this is and we have had all these examples anecdotal examples, he said do you have any empirical evidence, he was skeptical, Judge Henderson was skeptical and the third Judge also a district court Judge in Washington was a little more opaque in her views as I gleaned from her questions.
MARGARET WARNER: Did either side contend this that law would take special interest money out of politics
NEIL LEWIS: Well they did in different ways. The people challenging the law said it would only take political party special interest out but in fact, special interest which is am elastic term as you know Margaret, things like the NRA or abortion rights or opponents, those are more readily what they by of special interest not bound under the law the same way political parties are. So Bobby Burchfield the lawyer for the republican national committee argued it sends the money underground. You wouldn’t see who donated the heavy amounts of money as you can now to the party. They would donate to these special interest groups and you wouldn’t know what it was. That was his attempt to deal with that.
MARGARET WARNER: And the other side? Did they deal with that issue?
NEIL LEWIS: Well, their general argument is that by reducing large contributions by acting on the contribution side you are reducing the influence of money and their argument remember is, everyone knows, people give money to get access. People give money to get access to press their points, lobbyists press their points about their what they feel on issues. Bills they want stopped, amendments they want stopped, amendments proposed. And as I said they provided these numerous rather rich examples of people going in and saying, hey I want to talk to you about this bill. But remember we were very generous to you and very generous to your party and committee.
MARGARET WARNER: And how quickly do you think this three-Judge panel will rule?
NEIL LEWIS: Well they asked about it. Judge Henderson asked Ken Starr his opinion and in response to Henderson and Starr sort of agreed they’ll work quickly through the holidays and probably issue a ruling by the end of January. They need that to get it quickly to the Supreme Court, under the law it t goes quickly to the Supreme Court so the Supreme Court can put on its calendar this year and decide by spring. This is a case most lawyers expect to produce a new landmark ruling on the limits of free expression.
MARGARET WARNER: All right, well, Neil Lewis, thank you so much.
NEIL LEWIS: Thank you, Margaret.