Next Stop: The Courts

By Mitch Frank Sunday, Mar. 24, 2002
In the battle over campaign-finance reform, Kentucky Senator Mitch McConnell--the reform bill's chief opponent--has long been cast as a villain by the media. And when a media villain needs a lawyer, who better than Ken Starr? Just 24 hours after the bill finally passed, McConnell introduced a legal dream team led by the former special counsel. It will ask the Supreme Court to kill the new law. Senators John McCain and Russ Feingold always knew this would happen if their bill passed. The congressional fight was just a prelude to the main event: asking nine Justices to decide how extensively campaign cash can be regulated without impinging on democratic rights.

Not since Bush v. Gore have so many constitutional lawyers jumped on a case. First Amendment liberal Floyd Abrams has joined Starr. McCain and Feingold are assembling their own impressive team to help U.S. Solicitor General Ted Olson defend the law. Sources say former Clinton Solicitor General Seth Waxman will lead lawyers from Common Cause, Democracy 21 and other reform groups.

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Knowing a court fight was coming, McCain and Feingold included a provision in the bill calling for a fast-track review process. A three-judge panel will hear McConnell's challenge, then the Supreme Court. At issue: the constitutionality of the bill's soft-money and issue-ad restrictions. "We started with the question, What do we think the court would uphold?" says Trevor Potter, a McCain ally and former Federal Elections Commission chairman.

"That's ludicrous," says McConnell lawyer James Bopp Jr. No matter how tightly constructed McCain's team thinks the bill's limits are, Bopp argues, they restrict free speech: "Ads can't mention a candidate's name for 90 days of the year. You can't get broader than that."

The court has been evenly divided on similar cases, and the decision will probably come down to a swing voter like Sandra Day O'Connor. Any decision will be complex--even with fast-track review, this fight won't be over until at least November.