The three-judge federal panel reviewing the Bipartisan Campaign Reform Act made a mess of its task and produced a disaster of a decision, if it can even be called that. Instead of clarifying facts and arguments for the Supreme Court, it has muddled them. And it has thrown financing of the 2004 elections into total confusion. We recommend that, if the three-judge court does not stay its own ruling, the Supreme Court do so.
In enacting BCRA, Congress called for it to be expeditiously reviewed by the courts. The three-judge court heard arguments in December. Then for five months, the judges seem to have gone at each other with hammers and tongs. They finally unleashed a monstrosity upon the world last Friday — what The New York Times called “a jumble of often-conflicting rulings totaling 1,638 pages.” The judges attached a chart to their ruling to help readers understand what they’d found constitutional, unconstitutional and non-justiciable and why. It only added to the confusion.
The basic function that the lower court was to perform was to establish a factual basis the Supreme Court could use when it takes up the case of McConnell v. Federal Election Commission. The three judges agreed among themselves on practically nothing. Two of the three agreed on only 11 items of fact, largely stated as assertions that, yes, soft money raised by candidates and federal officeholders leads to an appearance of corruption. As an overall fact-finding mission, however, the judges’ effort was a bust.
Commentators on the pro-BCRA and anti-BCRA sides have been debating which benefited more from the decision. To indulge this debate for a moment, it could be said that the decision has its merits as a compromise — upholding the ban on the soliciting of soft money by officeholders and candidates, banning parties from using soft money to buy advertising that mentions candidates and permitting collection of soft money for so-called “party building” activities. The court also defended full disclosure of campaign contributions from BCRA opponents.
But the court also decided to validate an interpretation of BCRA’s ban on independent “attack ads” that is almost certainly unconstitutional. It would forbid unions and corporations from spending money from their treasuries — political action committee funds would be OK — to “attack” or “promote” any politician by name any time of year, not just within the pre-election windows provided in the law. This finding would certainly lead to unending fights within the FEC and, ultimately, to endless court challenges.
In a sense, what the lower court did is irrelevant. Ultimately, the Supreme Court is going to decide whether BCRA is constitutional in whole or part. But by acting so late, the lower court has made it nearly impossible for the High Court to make a final ruling until late this year, when fundraising for the 2004 cycle is nearly half over. So the best thing that can happen is for this ruling to govern nothing. It should be stayed until the Supreme Court rules.