On further review, campaign ruling looks less speech-friendly

Friday, May 9, 2003

WASHINGTON — One week after a three-judge panel issued a 1,638-page ruling on the constitutionality of the McCain-Feingold campaign-finance law, the verdict among the parties in the case is clear: No one wants the ruling to take effect anytime soon.

Parties ranging from the National Rifle Association to the American Civil Liberties Union have petitioned the panel to stay its McConnell v. Federal Election Commission ruling pending Supreme Court review. The sponsors of the legislation, as well as the FEC, have also filed stay applications.

The fact that all sides of the debate have found something they don’t like in the ruling could be a compliment to the compromise the panel struck. Or it could be a sign that the three judges made a hash of the issue.

Whichever it is, there seems to be general agreement that the Supreme Court won’t be inclined to speed up its review of the ruling and decide on the First Amendment issues in the case anytime soon.

Instead, it appears increasingly likely that the Court will put the case on its schedule for early October, with a ruling unlikely much before the 2004 presidential primary season gets under way.

“The Supreme Court has been handed this monstrosity. To expect them to give a considered decision this term is unrealistic,” says election-law expert Kenneth Gross. “We are looking at the fall at the earliest, and perhaps the winter.”

The likely slower schedule for appeal may also prompt the three-judge panel to heed the stay applications and put off implementation of the ruling.

“The more people ask, the more plausible it is that the court will grant a stay,” says First Amendment lawyer Floyd Abrams of New York’s Cahill, Gordon & Reindel, lawyer for Sen. Mitch McConnell, R-Ky., and the National Association of Broadcasters.

As participants in the campaign-finance reform debate plowed their way through the ruling — one said a printed version weighed 14 pounds — the key aspects of the decision emerged.

When it was first issued late May 2, the decision was viewed at first by many lawyers and journalists as a victory for the First Amendment and a defeat for the sponsors of the Bipartisan Campaign Reform Act, known colloquially as McCain-Feingold. But this week, the bill’s supporters were sounding more content, and its critics more strident, as they sifted through the decision.

The shift in perception came largely because of what may be the most significant aspect of the ruling: U.S. District Judge Richard Leon’s rewriting of the rules on “electioneering communications,” or sham issue ads, which the law aimed to prohibit.

As written, the law made it a crime for union or corporate funds to be used for any broadcast communications that refer to a candidate for federal office 60 days before an election or 30 days before a primary. Leon, joined by Appeals Court Judge Laren LeCraft Henderson, struck down that provision as overly broad.

But then Leon, this time joined by fellow trial Judge Colleen Kollar-Kotelly, upheld a so-called backup definition that was included in the law in case the 30-day/60-day provision was struck down.

Under this broader definition, use of third-party funds for any ad that “promotes or supports … or attacks or opposes” a candidate is banned — whether or not it includes the “magic words” urging the audience to vote for or against a specific candidate. Congress added a limiting phrase to the backup provision, confining the ban to advertising that is “suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.”

But Leon’s controlling opinion struck down that phrase as “unconstitutionally vague.” Leon said groups could seek advisory opinions from the Federal Election Commission to determine if their communications are covered by the law.

The net effect of Leon’s ruling was to broaden significantly the ban on advocacy group advertising and to remove any time limits on when the ban took effect — meaning that an ad broadcast today could run afoul of the law, even though the presidential election is 18 months away.

“It took a couple of days to sink in,” says Joel Gora, associate dean of Brooklyn Law School. “But we realized that if the ACLU wants to run an ad criticizing Bush on civil liberties, we would be committing a crime … . How can it be that if we criticize President Bush, we have to ask the government for permission? It’s an enormous problem.” Gora was one of the American Civil Liberties Union’s lawyers arguing against McCain-Feingold in McConnell, as well as in the Buckley v. Valeo ruling on campaign finance 27 years ago — the decision that drew a distinction between political spending (which the Court considered a form of speech) and political contributions (considered not speech).

The NRA challenged the advocacy-ad aspect of the special court’s ruling in its stay application to the three-judge panel. The NRA had attacked the original provisions that the court overturned, but feels the decision has made things worse. According to NRA lawyer Charles Cooper of Cooper & Kirk, those provisions had “at least one — if only one — virtue: They would have had little practical impact on free speech until December of this year.”

As rewritten by Leon using the backup definition, Cooper told the court, the law “immediately threatens the NRA’s speech in support of gun legislation now pending in the Congress.”

This aspect of the ruling is unlikely to survive Supreme Court scrutiny, many lawyers agree. And it may, perversely, have helped opponents of the law by setting up a big, fat target for the Supreme Court to swing at, highlighting the law’s overall First Amendment problems.

“I can’t imagine the Supreme Court upholding that one,” says Gross. “And I can’t imagine what was in the mind of Judge Leon.”

The biggest loss for supporters of the law turned out to be the panel’s rejection of the blanket ban on soft money fund raising by national party committees. Kollar-Kotelly and Leon agreed on the evils of soft money, and ruled that officeholders and candidates may not raise or spend soft money. But Leon’s controlling opinion was that political parties can raise soft money and spend it for so-called mixed use party purposes such as voter registration and “get out the vote” activities.

In asking the panel for a stay, congressional sponsors of McCain-Feingold focus on this aspect of the ruling. Without a stay, they warn, parties will have “incentive to spend soft money more quickly and in greater amounts” while the decision awaits high court review.

The parties, on the other hand, were happy with this part of the decision.

“It is a substantial victory for the national parties,” says Michael Carvin, one of the lawyers for the Republican National Committee. “It enables parties to raise soft money and spend it on the most important things that parties do.”

Debate continues over how much the ruling will influence the Supreme Court on appeal. A fast-track appeals process was written into the law to give the high court the benefit of fact finding by the three-judge panel, which the Supreme Court would then use to weigh the law in light of Buckley v. Valeo and other more recent precedents.

What the panel produced instead, in the view of some, was three different findings of fact, plus three different interpretations of Court precedent that may carry little weight with justices who have become well-versed in campaign-finance law over the years.

So was the delay — and the verbiage — worth it?

McCain-Feingold supporter Trevor Potter, general counsel of the D.C.-based Campaign Legal Center, gamely asserts that in fact the factual record is “reasonably well-organized” within the panel’s decision.

“We didn’t want a situation like Buckley, which was ruled on without a factual record,” says Potter. In McConnell, Potter insists, the factual record is there for the justices to use.

From the opponents’ side, Abrams thinks it is too cynical to think the ruling will be ignored by the high court. “But when you have three separate findings of fact, there really isn’t much for the Supreme Court to defer to. From the Court’s perspective, what you have is three relevant briefs.”

Possibly the cleanest win contained in the opinion belongs to minors who brought a suit to challenge the law’s total ban on campaign contributions by those 17 or younger. Emily Echols, a politically active 14-year-old from Jefferson, Ga., was the named plaintiff. The three judges agreed the ban was a clumsy and unconstitutional way of preventing adults from evading contribution limits by funneling donations through their children. The minors were represented by the American Center for Law and Justice and the Madison Center for Free Speech.

“Emily Echols hit it out of the ballpark,” says Gross. “Now she can spend her allowance however she wants.”

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