Reform Ruling Sparks Spin War
As supporters and opponents of the Bipartisan Campaign Reform Act offered competing interpretations of a preliminary court decision handed down last week, they were forced to contemplate the likelihood that the complicated ruling will govern election activity for a large chunk of the next year.
“There is a question of who is going to file an application for a stay, if anybody,” remarked one legal expert.
Initially, defenders of BCRA had indicated they would move quickly to ask for a stay of the opinion, a move that would potentially leave the law intact until the Supreme Court decides the issue.
But they appeared to pull back from pushing for a stay this week as they assessed the 1,600-plus-page decision from the three-judge panel, and sources indicated there may be a strategic advantage in not immediately making such a move.
Beyond the reality that stays are extraordinarily unusual and difficult to get, to say nothing of the fact that it would heap extra work on the court, some observers noted that asking the court to stay could detract from assertions by McCain-Feingold supporters that the mammoth court ruling was a victory of sorts for them.
“There’s no doubt that people play spin games with all this stuff,” said one lawyer involved with the defendants in the case. “The truth of the matter is when everyone looked at this opinion immediately, there was a sense that the defendants didn’t do all that well and that the plaintiffs did.”
Upon further analysis, the attorney explained, “everyone is coming to the view that this is not a bad decision for the defendants.”
Supporters of the law are seizing on the fact that the court panel upheld a provision that prohibits federal candidates and officeholders from raising or spending soft money.
“My sense is that it’s not ideal. It’s not where we hope to come out in the end, but there’s a lot that’s good in it also,” said Randy Moss, a member of the legal team representing the Congressional sponsors in the case.
Campaign finance reform advocates such as Democracy 21’s Fred Wertheimer are unequivocally stating that this means the House and Senate national campaign committees will also be out of the soft-money business.
“Our friends on the other side seem to be having trouble with the fact that the campaign committees cannot raise and spend soft money,” Wertheimer stated this week.
“This statute is absolutely clear that Members of Congress cannot control an entity that raises and spends soft money, and Congressional campaign committees are wholly made up of Members of Congress,” explained Wertheimer, who called it an “open and shut” matter.
Robert Bauer, a Democratic election lawyer who serves as counsel to the two Democratic campaign committees, called it “really quite remarkable that a decision that on the face of it has said specifically that national party committees can raise soft money somehow means that national party committees can’t raise soft money.”
Bauer said the defenders of the McCain-Feingold law “are offering this up as something of an imagined consolation prize following a decision that struck down, for most purposes, a national party soft-money ban.”
“It represents a ploy, an argumentative ploy by the defendants to suggest they won more in this case than they did,” Bauer said, noting that in all of the nearly 1,700-page opinion, none of the three judges hold that the four Congressional party committees are somehow to be treated differently because they are headed by federal officeholders.
The three judges, he said, had an extensive record of facts before them and knew quite well the structure of each of the six party committees, including the Congressional party operations that traditionally are headed by elected officials.
“My position is, and I have expressed this firmly, that the same rules, whatever they are determined to be, apply to all party committees, that’s how the court itself appeared to proceed on the issue,” Bauer said. “And should the [Republican National Committee] seek to peel off and operate under a regime of its own, I can assure you that every effort will be made by me to point out through every formal legal process that it is in fact controlled by a federal candidate and officeholder,” he said in reference to President Bush.
Bauer said that the Democratic House and Senate party committees haven’t yet decided whether to begin raising soft money because they are still reading and analyzing the massive set of rulings.
Rick Hasen, professor at Loyola Law School in Los Angeles, agreed that the defenders of McCain-Feingold were pushing their own interpretation of what the court said as far as whether the Congressional party committees can jump back into soft money.
“It’s a creative argument. It’s good lawyering. But I think if you went to the judges for clarification the judges would say, ‘Of course that’s not what we meant,’” he said.
RNC lawyer Bobby Burchfield declined to comment on the soft-money matter but decried the notion that the decision was somehow a win for reformers.
“At a high level the court, regardless of the outcome here, the court has totally debunked the notion that this is a very simple statute that does nothing more than close a few loopholes in the Federal Election Campaign Act,” Burchfield said. “What the court decision here has done is demonstrate that this statute is a monster. It’s got an immense amount of restrictive provisions in it and as you analyze it closer and closer, it gets more and more difficult to defend.”
James Bopp, one of many lawyers representing plaintiffs in the case, said in an interview on Tuesday that “people on our side are thinking of an injunction pending appeal” against certain provisions affecting issue advocacy.
Bopp described the court’s lengthy and often conflicted decision as a “mixed bag” but admitted he is particularly worried about the court’s definition of “electioneering communications” and the effect that will have on political discourse.
While the court tossed out a definition created by Sens. Olympia Snowe (R-Maine) and Jim Jeffords (I-Vt.), which defined electioneering ads as those referring to a clearly identified federal candidate within 30 to 60 days of an election, it left in its place a broader, more vague definition.
The court instead chose to deem an electioneering communication as one that “promotes or supports” or “attacks or opposes” a candidate for office, regardless of whether it expressly advocates the election or defeat of a candidate.
Some of Bopp’s clients, including the Club for Growth, are already feeling the sting of the ruling.
Until recently, the group had been running a series of ads against moderate Republican Senators such as George Voinovich (Ohio) and Snowe, who have not supported President Bush’s full proposed tax cut.
“There’s irreparable harm when you suspend speech,” remarked Bopp. “I’m very troubled. You can’t criticize politicians 24 and seven.”
Added Bopp: “There’s all sorts of legislative activity going on right now that people want to influence [Congress] on. … Anything you say about a politician will be viewed by somebody as promoting them or attacking them.”
As the campaign finance community wades through the morass of uncertainty, members of the Federal Election Commission have been working feverishly to assess how it will deal with the interim between the District court’s decision and a ruling from the Supreme Court.
On Monday, commissioners met for about two hours behind closed doors to discuss their options, GOP Commissioner Bradley Smith said.
“If a decision is made to seek a stay, by us or one of the other defendants … that would resolve a lot of the issues involved,” Smith said, adding that he expects the FEC to issue some sort of guidance to the public in the near future.
Smith said he does not, however, expect that the watchdog agency would rescind any rules it’s already issued with respect to BCRA, but he did not reject the idea of issuing additional regulations.
“One option available to us is to provide quickly done interim rules,” he said. “I’m not sure that’s particularly attractive, but it may be worth doing, making clear what’s a pretty voluminous opinion.”