Reform Still in Limbo

Posted April 4, 2003 at 6:24pm

Amid reports that the three judges reviewing the new campaign finance law are at loggerheads, supporters of McCain-Feingold voiced grave concern last week that any further delay could doom Supreme Court consideration of the law this term and throw the 2004 elections into chaos.

“It remains extremely important for the Supreme Court to decide this case by the summer and not to let this go into the fall term,” said Fred Wertheimer, a spokesman for the legal defense team representing the Congressional sponsors of the new law.

“If the delays push this decision into the fall term, this could seriously disrupt the 2004 elections and, in particular, the presidential election,” Wertheimer said.

According to recent reports in The Washington Post and on National Public Radio, U.S. Court of Appeals Judge Karen LeCraft Henderson has found herself at odds with the two other judges on the review panel — U.S. District Court Judges Colleen Kollar-Kotelly and Richard Leon — over how to proceed with the case since oral arguments were heard in early December.

While Henderson had indicated in open court in December that the panel would likely hand down a decision by late January, the Post reported that the two U.S. District Court judges did not agree with her timetable for rendering a decision.

Moreover, while Henderson is reported to have moved quickly and begun drafting an opinion in the case almost immediately, unnamed sources told NPR and the Post that the other two judges were accustomed to proceeding in a different manner — taking their time in mulling over the facts of the case.

As some legal observers ponder the highly unusual media reports of the behind-the-scenes wrangling between the judges, many more seem befuddled and irritated that, four months after the case was heard, the trio has been unable to decide the matter.

“Our concern is that this has real effects on real politics,” said Amanda Cooper, a spokeswoman for New York University’s Brennan Center for Justice, which has been working on behalf of defendant intervenors in the case.

Continued Cooper: “The longer this takes, the harder it’s going to be to have these rules in place the next time America elects the president, and that’s a shame.”

As their patience wears thin, some legal experts are suggesting that the parties involved in the case take action.

One idea proposed by Loyola Law School professor Rick Hasen would be for one of the parties in the case to file a motion with the Supreme Court seeking an order directing the lower court to complete its work by a certain date or at least give a time frame for when it will complete its review.

The order, known as “mandamus,” simply tells a lower court to do something. “The idea would be to put more pressure on the district court to issue an opinion so that there could be review this term,” Hasen said in an interview.

He suggested that the defenders of McCain-Feingold may best be served by seeking such an order because they might risk losing a supporter on the high court if Chief Justice William Rehnquist retires at the end of the term and the campaign finance case is still languishing.

Rehnquist has been a reliable vote to uphold campaign finance regulations throughout his tenure. “Delay and the chance to change the judges with new justices appointed by President Bush presents an opportunity for a change in the constitutional law,” Hasen said.

Wertheimer flatly rejected Hasen’s suggestion. “We’re not going to pursue the mandamus stuff,” he said, adding that “the goal of the expedited process was to get an early decision by the Supreme Court” and “that goal remains in effect.”

Legal experts said that because the campaign finance law lays out the process for an expedited review, there is no way for the Supreme Court to simply take the case away from the three-judge panel.

“This is a very unfortunate situation,” said Trevor Potter, a former FEC chairman who helped in the drafting of the McCain-Feingold law. “It is obviously important for the court to get an opinion out as soon as possible. At this stage, I think it’s less important that they have a polished, thousand-page decision than [that] they get this matter with the full factual record — which they already have — to the Supreme Court.”

“We all know that the Supreme Court is the final decision maker in this. It seems to me that the lower court is making it difficult for the Supreme Court to do its job, which is expedited review,” Potter added.

“I think it is really important that the Supreme Court get this decision and is able to decide it this term because it affects ongoing election activity. You don’t want a decision in the middle of the presidential election.”

“If there are disagreements at the district court, then dissenting opinions or separate opinions may be appropriate. But what is important is to get it up there literally as soon as possible,” Potter said.

Others, however, suggested that the judges should be allowed as much time as they feel they need.

“These three judges have a huge job,” said Jim Bopp, a lawyer and close ally of Sen. Mitch McConnell (R-Ky.), who is fighting to have the law ruled unconstitutional. “There are two dozen major substantive provisions that they have to address and that’s an extraordinarily large job. It’s very rare that a court has that much in front of them.”

Noting that the amount of documentary evidence before them “can be measured in yards,” Bopp expressed relief that the court was taking its time to carefully consider the case.

Joel Gora, associate dean of Brooklyn Law School and counsel for the American Civil Liberties Union which is also seeking to have the law struck down, acknowledged that “everybody’s a little bit antsy” and “anxious” but tried to put the situation in historical context.

“We are still ahead of the Buckley time system,” remarked Gora, who was one of the attorneys for the plaintiffs in Buckley v. Valeo case, the Supreme Court’s 1976 landmark decision on campaign finance.

Gora noted that even with a much less extensive record, the preliminary judicial panel in the Buckley case took about eight months to reach a decision. It was then argued in front of the Supreme Court in early November, and the decision was handed down in late January.

“So even the Supreme Court, which had no fact-finding obligations, took three months with far fewer briefs and parties and dimensions to it than the McConnell case,” Gora said. “In a way, it’s understandable that it seems to be taking longer than was expected.”