Reform Law Left in Limbo

Posted February 7, 2003 at 6:25pm

Two weekends ago, an impassioned Kenneth Starr told an audience at the 30th annual Conservative Political Action Conference that he has no doubt the Supreme Court will strike down the new campaign finance law that bans soft money and restricts issue advertising.

But exactly when the Supreme Court will get the opportunity to hear — much less resolve — that controversial case has become a source of worry for many observers and has left some lawyers doubting that the High Court will have ample time to review the complex case before its current term ends in June.

“Everybody right now is striving for, probably praying even, for some measure of clarity about the rules that are going to apply this cycle,” said Democratic election lawyer Bob Bauer, an adviser to numerous Democratic candidates and party committees. “This is fundamentally what the concern is.”

James Bopp, a GOP lawyer and close ally of Sen. Mitch McConnell (R-Ky.), said he personally believes that time has already run out for Supreme Court consideration of the controversial new law this spring.

“My view is that, given the time frames in the statute, the time is already out,” Bopp, who is involved in the case, said in an interview late last week. “Dozens of provisions have been challenged by dozens and dozens of parties and I just think it’s important that they get it right as opposed to get it done fast. … At this point, I think it’s unlikely it would reach the Supreme Court this spring.”

Already, more than two months have passed since the high-profile case was first heard by a special three-judge panel made up of two U.S. District Court judges and one Court of Appeals judge — and that body still had not rendered its decision on Friday.

Bopp and others pointed out that even under the expedited process for judicial review that is spelled out in the statute, justices will be hard-pressed to fit the case into the High Court’s schedule.

Under the Bipartisan Campaign Reform Act, those parties who lose their first court battles will have 30 days to file their appeal with the Supreme Court, and those who oppose them have another 30 days to file.

In practical terms, that means that even if the three-judge panel hands down its decision today, it would be the middle of April, the last month the court is scheduled to hear arguments this session, before the process truly gets under way.

But it’s not just the judicial waiting game that’s making people edgy.

Even if the three-judge panel issues its decision this week, the law will still be far from the end of its obstacle course, for after its final test at the Supreme Court, if it has been altered in any way from its current form, action from the Federal Election Commission awaits.

“If the [Supreme] Court orders a change in this law, the FEC is going to have to take up a new set of regulations,” Bauer explained. “That will require still more time and leave us with more uncertainty. The hope is we’ll have some judicial determination sooner, rather than later.”

Judging by several comments made by Judge Karen Henderson during oral arguments last December, many observers concluded the three-judge panel would issue its decision by late January.

Henderson expressed surprise when Starr, a lead counsel for McConnell and others challenging the Federal Election Commission, said it would be “helpful” if the court handed down its ruling by “the end of January or early February.”

Henderson said she had estimated they would need to render their decision even “earlier” than that.

As snow blanketed Washington late last week, eager participants in the most pivotal campaign finance case in the past 25 years settled in for at least another weekend of waiting and wondering.

Cleta Mitchell, a campaign finance lawyer at Foley & Lardner who has been involved in the case on behalf of the National Rifle Association, said she thinks there is still a possibility that it will be resolved earlier rather than later, but she’s not holding her breath.

“If we do get a decision by the end of [this] week, I think there’s still time for the Supreme Court to take the case, set up a briefing schedule and render a decision by the end of June,” Mitchell said.

But she added that she is increasingly concerned about the complexity of the legislation and how that will impact the High Court’s task: “It’s important to realize how many pieces there are to this litigation, how many separate challenges there are. Each and every specific challenge has to be addressed … . It’s so complex that I think it gets increasingly difficult for the Supreme Court to be able to do it this term.”

Bauer cited similar concerns.

“The general feeling is that there comes a time beyond which it becomes harder for the Supreme Court to find time on its docket this term,” Bauer said, adding that he doesn’t “know what that [operative] date might be.”

In the meantime, lawyers like Bauer and Mitchell are doing their best to advise their respective political clients on the ins and outs of the new law, which may or may not be in place as the year wears on.

“We’re operating as if this is going to be the law,” said Mitchell.

But even as they wait on pins and needles, lawyers involved in the case are already pondering what possibilities might lie ahead for political actors if one or both courts strike down either the McCain-Feingold law in its entirety or just portions of it.

One question on everyone’s mind is whether party committees, candidates and groups will immediately start operating under a new set of rules if the three-judge panel strikes down any part of the law.

“Certainly the planning is taking place under the provisions of the law as they exist today,” Bauer explained, “but obviously there is some contingency planning, something being done as to what happens under another alternative scenario.”

If the three-judge panel strikes down any or several portions of the law, Bopp said he expects that the court will also enjoin the FEC and the Justice Department from enforcing those provisions.

What that means is that if the court, hypothetically speaking, were to reverse Congress’ ban on soft money, that party committees would be able to immediately begin raising the unlimited funds from corporations, labor unions and wealthy individuals.

Likewise, if the court were to toss out the new electioneering provisions which limit issue advocacy within 30- and 60-day windows of elections, those involved in ongoing campaigns — such as the special election to fill Rep. Larry Combest’s (R-Texas) seat — could find themselves operating under a new set of rules.

“I’ve done dozens and dozens of state and federal election law cases, and whenever I’ve won and the court has decided that a statute is unconstitutional, it’s enjoined,” Bopp remarked.

But other attorneys said if those defending McCain-Feingold lose at the District Court level, they expect the government to seek a stay of the court’s decision until the Supreme Court has had a chance to rule on it.

“What would make the most sense is for [the three-judge panel] to stay the decision,” said one attorney, speaking on background.

Supporters of the new law, he said, are not prepared to sit back and watch a soft-money feeding frenzy or issue ad free-for-all unfold while the law is still in limbo.

The lawyer noted that in 2000, the FEC continued to enforce limits on how much party committees were allowed to spend on Congressional candidates’ campaigns even though the 10th U.S. Circuit Court of Appeals had struck down those limits.

The FEC threatened to retroactively apply penalties to those who exceeded the limits and the U.S. Supreme Court ultimately reversed the appeals court decision in the case commonly known as Colorado Two.