Court Fight Over Campaign Reform

Lawyers arguing over the constitutionality of the nation's new campaign finance law are waging campaigns of their own in federal court, employing election ads, secret fund-raising documents and dramatic speeches to try to win the judges over.

Seeking to overturn the law, First Amendment lawyer Floyd Abrams told the court Wednesday that it criminalizes speech, threatening up to five years in jail for those who violate its limits on election-time political ads.

Defending the rules, Federal Election Commission counsel Richard Bader described a big-money political system in which lobbyists and other donors routinely used five- and six-figure contributions to political parties to buy access to policy-makers.

"It's like two ships passing in the night," Appeals Court Judge Karen Henderson remarked at one point. "The plaintiffs are talking about the First Amendment. The defendants are talking about the problem."

Arguments were to resume Thursday afternoon before the three-judge panel, which also includes two circuit judges. It is likely to rule early next year, clearing the way for the losing side to appeal to the Supreme Court.

The law that took effect Nov. 6 bans national parties from raising so-called "soft money," unlimited contributions from corporations, unions and others that the political parties had spent on generic activities such as issue ads, get-out-the-vote drives and operating costs.

It also bars a range of interest groups from airing ads close to elections that mention federal candidates. The law's proponents contend groups have used phony issue ads to evade a ban on the use of union or corporate money to influence federal elections.

Abrams showed several ads that he said would have been illegal had the law been in effect when they ran, simply because they mention federal candidates and were broadcast close to a federal election.

One ad, by the group Americans for Term Limits, showed a plump man smoking a cigar. Arguing that officeholders' terms should be capped, the group mentioned a candidate who signed the group's term limit pledge and asked viewers to call her opponent and urge him to sign, too.

"Well, what is the matter with that?" Abrams asked. Many of the ads criticize members of Congress or people running for Congress, though not calling directly for their election or defeat, he said.

"That is precisely the kind of speech the First Amendment protects most," Abrams said.

Judge Richard Leon pressed the law's defenders for evidence that the old campaign finance system corrupted Congress or gave it the appearance of corruption.

Lawyers representing the government and the law's sponsors said they had plenty.

They recited from internal memos of companies and political parties linking big donations to government policy and reminding the court of the Lincoln Bedroom sleepovers and White House coffees of the Clinton years.

Attorney Roger Witten, representing the law's backers including Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis., gave several examples in which fund-raising was linked to public policy. He included a memo involving a Republican senator who is suing to try to overturn the law.

Witten cited a 1999 internal document from PhRMA, a drug lobby, prepared before a meeting the group was having with Sen. Mitch McConnell, R-Ky., who served on the committee overseeing the agency that approves drugs and was the Senate Republicans' chief fund-raiser.

The memo recommended the lobby make two points to McConnell — one involving pharmaceutical costs and the other noting the industry was a solid GOP supporter and recently gave $200,000 to party committees.

Abrams, representing McConnell, said the senator wasn't asked for any specific action and didn't promise anything.

Witten also cited a Democratic National Committee call sheet urging one senator to solicit drug maker Glaxo, which had a trademark matter before Congress, for a $50,000 donation.

"One breath — policy, money," Witten said.

Dozens of groups including the Republican National Committee, California Democratic Party, AFL-CIO, U.S. Chamber of Commerce and National Rifle Association say the law violates a range of constitutional rights.

Besides free speech, they said it interferes with states' right to regulate elections and with national and state parties' right to coordinate fund raising and other activities.

Whitewater prosecutor Kenneth Starr argued the law bars parties from engaging in activities that interest groups are permitted to do — raising questions of equality.