Groups Seek to Overturn BCRA Stay

Posted May 22, 2003 at 2:16pm

The Club for Growth, the National Right to Life Committee and other groups fighting to overturn the Bipartisan Campaign Reform Act asked the Supreme Court on Thursday to reverse the stay leaving the statute intact until the high court rules on its constitutionality.

The groups, represented by attorney James Bopp, filed papers with Chief Justice William Rehnquist asking that the stay be vacated. The District Court three-judge panel issued the stay Monday.

The groups oppose many facets of the new law, including the statute’s treatment of issue advocacy.

The three-judge panel issued a split decision on May 2 overturning certain soft-money provisions and replacing a Congressional-drafted definition of electioneering communications that regulates ads featuring federal candidates within 30 days of a primary and 60 days of a general election with a broader and more vague definition.

In a separate filing, Bopp, who is affiliated with the James Madison Center for Free Speech, asked for an injunction pending appeal that would suspend enforcement of the three-court panel’s replacement definition of electioneering communications until the Supreme Court can address the issue.

Together, these actions would in effect lift all new regulations of issue advocacy and allow issue ads to be run under the previous rules of the Federal Election Campaign Act.

Bopp noted that because of the lower court’s decision, the Club for Growth “is already the subject of a complaint to the Federal Election Commission urging that civil penalties should be imposed on them for publishing advertisements in South Dakota urging its citizens to contact their Senator, who is currently a federal candidate, and to ask him to support the president’s tax-cut proposal, currently pending in Congress.”

That complaint was filed recently by Democratic election lawyer Bob Bauer against the group, alleging that such ads violated the statute.

Other groups, such as the National Rifle Association, have supported the lower court’s stay, arguing that the 30- and 60-day windows were just as egregious as the replacement definition but would have less of an impact in the short term and were preferable in the interim.

But in a recent interview Bopp said that some are already feeling the sting of BCRA’s issue advocacy provision.

“There’s an ongoing special election in Texas,” he said, referring to the contest to replace retiring Rep. Larry Combest (R). “The special gag rule is in effect there, today.”

He predicted a “catastrophic effect” come January for groups such as the National Right to Life Coalition because of the large number of presidential primaries and caucuses slated nationally.

“When December rolls around and when my clients in other legislative battles [want to run issue ads] … federal candidates all up and down the spectrum are going to be immunized from any criticism or praising about how they vote in Congress — or what they should vote for in Congress,” he explained.

Bopp said he thinks desperation has led some opponents of the law to accept the court’s stay, adding that his requests to the court are not far-fetched.

“I’ve handled probably 70 election law cases now,” he said. “I have gotten injunctions against dozens and dozens of federal and state laws, and I have never ever in any of those cases had a stay issued in any of those cases I’ve won.”