Copyright 2003 The New York Times Company The New York Times
June 5, 2003, Thursday, Late Edition -
Final
SECTION: Section A; Page 31; Column
1; National Desk
LENGTH: 886 words
HEADLINE: Justices to Rule on Schedule Of Campaign
Finance Case
BYLINE: By LINDA GREENHOUSE
DATELINE:
WASHINGTON, June 4
BODY: Within the
next few days, possibly as early as Thursday, the Supreme Court will announce
how it plans to handle one of the most daunting logistical challenges in the
court's recent history: organizing and scheduling the appeals in the huge
campaign finance case in a manner most likely to produce a coherent presentation
and prompt decision.
It has been slightly more than a
month since a special three-judge federal district court here issued its
1,638-page ruling that upheld some parts and struck down others of the new
federal campaign finance law. In that time, a dozen separate appeals have been
submitted to the Supreme Court, which under a special provision of the law is
required to accept the case and to hear it on an expedited basis.
The justices will devote part of their private weekly
conference on Thursday to considering proposals for meeting the requirement of
speed. A midsummer argument, once considered a possibility, no longer appears to
be an option, but the court might well decide to hear the case in September
rather than wait for the formal start of the new term on Oct. 6.
The Bush administration has proposed several alternatives: shortly
after Labor Day; the last week in September; or the week of Oct. 6. The district
court issued a stay of its decision, so the law remains in effect until the
Supreme Court rules.
The 12 appeals speak for the
approximately 80 separate groups and individuals participating in the lower
court as challengers or defenders of the new law.
The
appeals seek the justices' review of some 20 separate issues including, most
prominently, the constitutionality of the law's restrictions on the use of "soft
money" -- unlimited contributions -- by national and state political parties and
the ban on the use of money from corporate and labor union treasuries for
broadcast advertisements deemed to be "electioneering communications."
Even that description -- 80 parties in 12 appeals
concerning 20 issues -- understates the complexity of the case as a matter for
the Supreme Court's consideration. With the judges on the district court having
upheld some provisions and struck down others, everyone is appealing parts of
the judgments and defending others. In an ordinary appeal, the loser -- the
appellant -- argues first, shapes the questions for appeal in a brief that
prompts a response from the other side, and then has the last word in its own
reply brief. But in this case, it is unclear which side should play that role, a
question that has been the subject of much backstage maneuvering among the
litigants for strategic advantage.
Each side appears to
have concluded, for its own reasons, that it would be advantageous for the other
side to go first. The Bush administration, which is defending the law, is
proposing to the justices that those who were plaintiffs in the district court
should file the opening briefs. Those plaintiffs included Senator Mitch
McConnell, the Kentucky Republican who is the law's most vocal Congressional
critic, and an array of groups that otherwise have little in common, including
the American Civil Liberties Union, the National Rifle Association, organized
labor, the United States Chamber of Commerce, the Republican National Committee
and the California Democratic Party.
Under the
administration's proposal, the plaintiffs' opening briefs would be followed
three weeks later by briefs from the defendants -- the government and the six
Congressional supporters of the statute who were permitted to argue in its
defense in the district court. Then each side would get to file a reply brief, a
privilege usually reserved for the side that goes first. Under this plan, the
defendants would have the last word.
Solicitor General
Theodore B. Olson told the justices that his plan would make for a more coherent
presentation by avoiding the need for the parties to make separate presentations
on the parts of the judgment they want upheld and overturned. The plaintiffs
would simply "set forth all their constitutional challenges" to the law in their
opening brief, with the defendants then able to defend it as a whole, he
said.
This approach would ignore the district court's
confusing and internally contradictory set of opinions and have the parties
start essentially from scratch. Mr. Olson put it more diplomatically: "An
approach to briefing that encourages the parties to focus primarily on the
statute rather than on the interaction of the three judges' opinions may prove
more useful to this court."
But Senator McConnell and
his allies told the court that requiring the plaintiffs to go first "would be
particularly inequitable" because the many different plaintiffs have "different
and even conflicting interests" and could not easily coordinate their
presentations in the short time available. Under the government's proposal, the
opening brief would have to be filed in the next three to four weeks.
"It makes far more sense for the defendants, not the
plaintiffs, to go first," the McConnell group told the court, because those
defending the statute should carry the burden of justifying it. The government's
proposed order of briefing reflects "a strategic desire to have the last word on
all the issues before the court," the McConnell brief said.
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