The court scheduled the early session to review the complicated campaign finance case ahead of the start of its regular term on Oct. 6. It also allowed a rare four hours of arguments, instead of the usual one hour.
The BCRA, also known as the McCain-Feingold law after its Senatorial sponsors, John McCain (R-Ariz.) and Russell Feingold (D-Wis.), was signed into law by President Bush in early 2002 after years of congressional debate.
Monday’s arguments were primarily split between two core aspects of the law under review, namely the banning of unregulated contributions to national political parties — so-called “soft money” — and strict limits put on broadcast ads paid for by corporations or unions in the weeks leading up to an election.
Additional requirements of the BCRA also at stake include limits placed on contributions from minors, among others. Some 12 lawsuits were consolidated by the courts into one case, dubbed McConnell v. Federal Election Commission (FEC), after one of the law’s key opponents, Sen. Mitch McConnell (R-Ky.).
The law “intrudes deeply into the political life of the nation” and “in a word, goes too far,” attorney Kenneth Starr, representing challengers to the law, told the high court. Starr is a former independent counsel, best known for his investigations into former President Clinton.
Solicitor General Theodore Olson, the government’s top lawyer representing the FEC, said the law was an important deterrent to the perception of corrupt politics, which he described as “the breakfasts, the lunches, the receptions, the dinners … the relentless pursuit of big contributions.”
Chief Justice William Rehnquist questioned Olson’s arguments closely, according to media reports.
“I don’t think Congress can willy-nilly regulate any contribution to a federal election campaign,” Rehnquist said, according to Reuters.
In all, eight lawyers addressed the court instead of the usual two. Attorneys representing parties opposing the law included noted First Amendment lawyer Floyd Abrams for McConnell and related challengers, Bobby Burchfield for political parties, Jay Sekulow representing minors challenging a ban on contributions and Laurence Gold for the AFL-CIO on the limits placed on issue advertising.
Defending the law, in addition to Olson, were Seth Waxman, a solicitor general during the Clinton administration, who argued on behalf of its chief congressional sponsors and Deputy Solicitor General Paul Clement.
Justice Anthony Kennedy questioned why the law regulates political parties but exempts the news media.
“That seems to me a very curious balance in a democratic society,” Kennedy said.
The court’s nine justices and the lawyers referred often to one of the high court’s key past decisions on campaign finance, the 1976 case Buckley v. Valeo, which upheld certain contribution limits to political campaigns and candidates, but struck down limits on campaign expenditures for violating First Amendment rights.
According to media reports from the court, McCain and Feingold sat in the first row in the spectator section, listening closely to the arguments. On the other side of the packed courtroom sat McConnell and other congressional opponents.
The last time the court heard four hours of arguments was in November 1975, when the court examined campaign finance law adopted after the Watergate scandal.
It is widely anticipated that the court will rule on the case before the end of the year as its decision could affect the 2004 presidential elections.