Waiting Game Continues for Court Watchers Anticipating BCRA Ruling

Posted November 12, 2003 at 2:27pm

They’ve been sitting on pins and needles since September, but those following the legal odyssey of the Bipartisan Campaign Reform Act of 2002 will have to wait a little longer having received no relief from the Supreme Court this week.

Eager court watchers speculated that a decision could be coming this week after the high court clerk’s office indicated an opinion was to be released today — but to the disappointment of many, the decision handed down was for Barnhart v. Thomas, not McConnell v. FEC.

“No BCRA Opinion Today,” Rick Hasen wrote on his popular Election Law weblog.

“The next chance apparently is Monday … and after that the Court is in recess until December 2,” speculated Hasen, a law professor at Loyola Law School in Los Angeles.

Hasen and other campaign finance experts noted that with the 2004 elections already well under way, the waiting game is becoming even more difficult.

“Obviously it’s nerve-wracking, and the earlier in the 2004 cycle this is resolved, the better. But we’re confident of the outcome, and whenever the decision comes down, we’ll be ready,” said Mark Glaze, associate counsel and director of public affairs for the Campaign Legal Center.

In a press release issued late last week, the Federal Election Commission reminded the regulated community that critical electioneering advocacy provisions are about to kick in for the 2004 presidential race.

Under the new law, individuals and other groups not registered with the FEC who make electioneering communications costing more than $10,000 must disclose that activity to the FEC within 24 hours of the television or radio broadcast.

That means disclosure dates will begin as early as December for the presidential race in places such as the District of Columbia, Iowa, and New Hampshire, which have early primaries and caucuses in January. Meanwhile, the electioneering provisions will begin affecting Congressional primaries in places such Illinois, Maryland, Mississippi, Ohio and Texas in February.

So, when exactly will the Supreme Court issue a ruling on the case?

According to Hasen’s analysis, the court, when in session, usually issues opinions on Tuesdays and Wednesdays and occasionally on a Monday after a week in which they’ve had oral arguments. Therefore, Hasen surmises, “the possible scheduled dates for the release of an opinion this year” are Nov. 17, Dec. 2, 3, 9, 10 and 15.

That said, the nine justices have no deadline by which they are required to issue a ruling in the case, and there is nothing to keep them from announcing their release of the opinion on another date given the unusual manner in which it has handled McConnell v. FEC.

But campaign finance reform experts, like Democracy 21’s Fred Wertheimer, said they are betting that the court will hand down a ruling in the complex case some time in December, with the latest probable date for a decision being Dec. 15, when the court is scheduled to begin its winter break.

“Most people have expected the opinion to come down in December,” Wertheimer said, explaining that in the meantime there’s not much else to do other than sit and wait.

“We’re at a point where it’s out of everyone’s hands. There’s time enough when we see the opinion to react to it, so I’m not in a state,” Wertheimer said. “I’m focused on other stuff.”