Editing Archibald Cox (section)

===Supreme Court advocate===
Just as his public support for Udall was uncharacteristic, after Watergate Cox was more open to represent groups not a part of traditional institutions.{{efn|For example, in early 1977 Cox agreed to help an advocacy group for native Americans who were pressing the claims of the [[Passamaquoddy]] and [[Penobscot]] against the state of Maine for land acquisition.<ref>{{cite news|url=https://www.newspapers.com/clip/5143301/cox_advises_passamquoddy_and_penobscot/|title=Cox Joins Legal Team for Indians|work=Portsmouth [N.H.] Herald|date=February 2, 1977|page=2|access-date=May 2, 2016|via=newspapers.com|archive-url=https://web.archive.org/web/20160602090421/https://www.newspapers.com/clip/5143301/cox_advises_passamquoddy_and_penobscot/|archive-date=June 2, 2016|url-status=live|df=mdy-all}}</ref> The claims were ultimately settled for $81.5 million through the adoption of the [[Joint Tribal Council of the Passamaquoddy Tribe v. Morton|Maine Indian Claims Settlement Act of 1980]].<ref>{{cite web|url=https://www.nlm.nih.gov/nativevoices/timeline/550.html|title=Maine Indians settle land claims against U.S.|publisher=National Institutes of Health, Health & Human Services|date=n.d.|access-date=May 2, 2016|archive-url=https://web.archive.org/web/20160604135448/https://www.nlm.nih.gov/nativevoices/timeline/550.html|archive-date=June 4, 2016|url-status=live|df=mdy-all}}</ref>}} But Cox's chief interest was always in Supreme Court advocacy. And he would argue two more landmark cases.

The first of the cases arose out of the 1974 amendments<ref>P.L. 93-443, {{usstat|88|1263}}</ref> of the [[Federal Election Campaign Act|Federal Election Campaign Act of 1971]]. These amendments were a response to the campaign finance abuses of Nixon's [[Committee for the Re-Election of the President]], which Cox was familiar with as Special Watergate Prosecutor.{{efn|The president's counsel, Herb Kalmbach, was able to raise large and illegal contribution from numerous corporations and commercial groups, and following the contributions the contributors received significant government benefits: The Milk Producers Association pledged $2 million at the same time the [[Presidency of Richard Nixon|Nixon Administration]] increased the support price of milk. American Airlines received approval for certain profitable routes right after an illegal contribution. ITT agreed to underwrite the Republican National Convention and an antitrust suit by the government was dropped after a direct order by the president to Richard Kleindienst.{{sfn|Cox|1982|p=397}}}} The amendments provided for financial reporting by federal campaigns, established a variety of contribution and spending limitations and provided for public funding of presidential campaigns. A variety of plaintiffs sued, claiming the regulatory scheme violated their right to free speech. In 1975 the case reached the Supreme Court, and Senators Edward Kennedy and Hugh Scott requested Cox to file an ''amicus'' brief on their behalf. [[Common Cause]] had intervened as a party in the lower court and therefore had time a right to argue before the Court, but its counsel [[Lloyd Cutler]] disagreed with the position taken by the organization (which supported the amendments) and Cox was asked to argue on its behalf.{{sfn|Gormley|1997|pp=e01 & 553 n. 34}}

Cox's key argument was that the contribution of money, even when done to enable public discourse is not "speech" but rather "conduct." Nor was total campaign spending, even though part of it was used to enable "speech." In light of the realities of escalating campaign contributions, Congress had a right to regulate this conduct to reduce corruption and to counter public cynicism in the electoral process. Cox argued that such conduct should be subject to a lesser standard of court review than the strict scrutiny of restrictions on pure political speech. The Court's decision in the case, known as ''[[Buckley v. Valeo]]'',<ref>{{ussc|424|1|1976}}</ref> was an eclectic array of separate opinions on various parts of the amendments, with only a brief ''per curiam'' decision tallying the votes on each issue.{{efn|The principal regulations were as follows: (i) prohibition on individuals against contributing more than $1,000 to any one candidate per election; (ii) prohibition on multi-candidate committees against contributing more than $5,000 to one candidate; (iii) prohibition on candidates against contributing above set ceilings from personal or family funds; (iv) prohibition on aggregate spending by a campaign above a set amount; (v) prohibition on individual against spending above $1,000 on behalf of a candidate regardless whether it was in coordination with the campaign; (vi) provision for federal financing of campaign under certain conditions, including that candidate agrees to spending limits; (vii) prohibition on "election committee" against spending more than $1,000 on any candidate who has elected public financing. The Court held that (i) the reporting requirements were constitutional; (ii) the restrictions on contributions were constitutional; (iii) restrictions on spending by the campaign or individuals (except those in coordination with a campaign that accepted the voluntary restrictions as a condition for public financing) were unconstitutional; and (iv) the provisions for public financing of presidential elections were constitutional.{{sfn|Cox|1982|pp=397–398}}}} The Court rejected Cox's approach. As Justice White put it in dissent, the Court held that 'money talks" without considering the variety of ways that federal laws regulate speech in other contexts.<ref>424 U.S. 257, 262–64 (White, J., dissenting).</ref> Nevertheless, while it voided limits on campaign spending, it upheld contribution limits, financial reporting requirements and the conditions to financing of presidential campaigns.<ref>For a discussion of the details of ''Buckley v. Valeo'', ''see'' {{harvnb|Cox|1982|pp=404–415}}; {{cite journal|url=http://heinonline.org/HOL/Page?handle=hein.journals/ylr103&start_page=469&collection=journals&set_as_cursor=8&men_tab=srchresults#&id=483|last=Levit|first=Kenneth J.|title=Campaign Finance Reform and the Return of Buckley v. Valeo|journal=Yale Law Journal|access-date=May 2, 2016|via=[[Heinonline]]|url-access=subscription|archive-url=https://web.archive.org/web/20160605130212/http://heinonline.org/HOL/Page?handle=hein.journals%2Fylr103&start_page=469&collection=journals&set_as_cursor=8&men_tab=srchresults#&id=483|archive-date=June 5, 2016|url-status=live|df=mdy-all}}</ref> [[John W. Gardner]], the chairman of Common Cause called it a victory for those who "worked so hard to clean up politics in this country."{{sfn|Gormley|1997|p=401}}

The second significant case Cox participated in dealt with affirmative action. In 1976 the [[California Supreme Court]] had ruled that the [[University of California, Davis]] Medical School had violated the [[Equal Protection Clause]] of the [[Fourteenth Amendment to the United States Constitution]] by failing to admit [[Allan Bakke]], a 37-year-old white engineering student, who claimed that he was barred by a "racial quota." The trustees sought out Cox to argue the case in the Supreme Court. Cox, who had already prepared a brief on the issue in the ''DeFunis'' case, agreed to take the case on the condition that other lawyers take primary responsibility for preparing the brief, something highly unusual for Cox who normally carefully supervised and revised anything that went to the Court under his name, but necessary because of the work involved on the Massachusetts court reform committee.{{sfn|Gormley|1997|pp=401–402}} When the case came on to be argued, on October 12, 1977, Cox was in the midst of his heaviest schedule yet of lobbying for the reform bill, with the legislative session over after the holidays. The crux of his argument was to separate two questions facing universities who had fewer places available than qualified candidates: 1) Which candidates are capable of benefiting from the education provided by the school? and 2) From that group, what characteristics can the school employ to make sure a class benefits itself, the school and the community? It is the confusion of the two questions that gives rise to the claim that a "quota" exists.<ref>{{cite journal|url=http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals/natblj3&size=2&collection=journals&set_as_cursor=15#&id=251|last=Simmons|first=Vikki|title=Friends of the Court|journal=Black Law Journal|volume=3|number=3|pages=245–248, 246|access-date=May 2, 2016|via=[[Heinonline.org]]|url-access=subscription|archive-url=https://web.archive.org/web/20160605135901/http://heinonline.org/HOL/Page?men_tab=srchresults&handle=hein.journals%2Fnatblj3&size=2&collection=journals&set_as_cursor=15#&id=251|archive-date=June 5, 2016|url-status=live|df=mdy-all}}</ref>

Cox opened his ''Bakke'' argument by stating these questions in a way that put the case at its most forceful; namely, that unless the Court permitted universities to take race into account to promote minority participation in learned professions, they would be excluded except for a very small number.{{efn|Cox opened by stating the case as follows:{{Blockquote|text="This case … presents a single, vital question: whether a state university, which is forced by limited resources to select a relatively small number of students from a much larger number of well-qualified applicants, is free, voluntarily, to take into account the fact that a qualified applicant is black, Chicano, Asian, or native American, in order to increase the number of qualified members of those minority groups trained for the educated professions and participating in them, professions from which minorities were long excluded because of generations of pervasive racial discrimination."{{sfn|Ogeltree|2004|p=16}}}}}} The case, known as ''[[Regents of the University of California v. Bakke]]''<ref>{{ussc|438|265|1978}}</ref> produced several opinions: four justices opined that taking race into account was never permissible; four, on the other hand, that it was permissible if "benign." Justice [[Lewis F. Powell Jr.|Lewis Powell]], whose plurality opinion was joined by the different groups in different parts, tried to thread the needle. While he rejected a fixed number of acceptances (a so-called "quota"), and thus affirmed Bakke's admission in this case, he also answered Cox's framing of the question in the affirmative and said that universities are entitled to take race into account as one factor among many.<ref>438 U.S. at 315–20.</ref> Assistant Attorney General [[Drew S. Days, III]], who watched the argument felt that Cox's presence was crucial as a symbol of the "establishment" assuring the Court (and the conservative Justice Powell) that the position was not "outlandish."<ref name="Gormley 1997 405">{{harvnb|Gormley|1997|p=405}}</ref> Powell's approach opinion underlies the approach of most university affirmative actions policies today.{{efn|There was much debate whether Powell's opinion on race as a permissible "plus factor," represented a holding of the Court inasmuch as it was not joined in by other justices. That doubt was removed by ''[[Grutter v. Bollinger]]'', 539 U.S. 306 (2003), where Justice [[Sandra Day O'Connor]] re-affirmed Justice Powell's reasoning in an opinion for the Court. Cox's friend and colleague Charles Ogeltree attributes the survival of affirmative action programs in universities to Cox's forceful argument in ''Bakke''.{{sfn|Ogeltree|2004|pp=17–18}}}}