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McCain-Feingold in Trouble

by ELAINE CASSEL

After listening to yesterday’s arguments in McConnell v. Federal Election Commission before the Supreme Court, it is obvious that the campaign finance reform law known as McCain-Feingold appears is headed for serious curtailment, if not the legislative graveyard.

Though some commentators have suggested that the law will stand or fall in a 5-4 split, a 6-3 decision to deep-six the law is more likely. Justices Ginsburg, Stevens, and Souter may vote for the legislation, the rest against it. Swing-vote Sandy (Sandra Day O’Connor) did not appear vested enough in the debate to even be sitting on the fence.

The hearings, for me, were another opportunity to renew my disgust with Justice Antonin Scalia. He hogged the debate, going off on rants of his own at any opportunity. My, how that arrogant man loves to hear himself talk. He berated the plaintiffs’ attorneys and the Congress at every turn, though he handled Solicitor General Ted Olson with the characteristic kid gloves. Congress ought to be furious at the barbs he threw its way. Scalia cannot make an argument that can hold its own–he must pepper it with ad hominem attacks, the kind of thing that lawyers in private practice are urged not to do. Justice Rehnquist had plenty of snide comments himself, directed mainly at Congress.

Scalia and Rehnquist showed their contempt for prior rulings that paved the way for McCain-Feingold, something not lost on Sens. McCain and Feingold as they spoke to reporters afterwards. McCain noted that Congress crafted the legislation with prior cases as their guide. But it was apparent that the court would likely reverse itself, as it has done so often in the past 20 years. This court blows with the political winds, and the justices will do what suits their personal ideologies. A majority won’t let details like precedence and deference to the legislative branch of government stand in its way. Indeed, time after time, Rehnquist and Scalia showed their contempt for the body that wrote the law.

The Bush Administration only signed onto the law as a public relations ploy–this the court knows. Bush set out, as he is doing now, to exploit every loophole in the law to amass his large campaign chest of corporate interests to whom he will continue to be beholden. It was laughable to hear Solicitors General Olson and Clement argue for the law, though it was apparent that Clement had his heart in it and believed in the law.

Olson, whose role in Bush v. Gore returned as bad memories do (I recalled how, when arguing for the Bush team, he was helped by Rehnquist who made his best arguments for him), ate up much of his time sparring and laughing with buddy Scalia. His argument, if one can call it that, consisted of strings of redundant phrases, lacking in passion, conviction, and trenchant legal reasoning.

The best lawyer of the day was former Solicitor General Seth Waxman, arguing for Senators McCain and Feingold. He was brilliant, impassioned, and, much to my delight, ended one of his rounds instructing Scalia to let him answer his question. That was one of the few times that Scalia did not get away with asking a rhetorical question and then waxing idiotic on it with insults and sarcasm.

I recommend listening to the arguments, if for no other reason but to hear good and not-so-good lawyering and not-so-good “justicing.” I dare you to find one justice that inspires you with a sense of commitment to the much needed reforms the law seeks to address.

Scalia criticized Congress for writing a law that is in its “self-interest,” meaning that it regulates their own campaigns. Following that logic, the law is in the justices’ self-interest as well. We rarely get to hear Supreme Court arguments–Bush v. Gore, the University of Michigan affirmative action cases are recent exceptions. When we do, we are reminded, sadly, of how intensely political the Supreme Court is.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: ecassel1@cox.net

 

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