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Campaign finance law struck down { May 2 2003 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A6500-2003May2.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A6500-2003May2.html
Parts of Campaign Finance Law Struck Down
By Neely Tucker
Washington Post Staff Writer
Friday, May 2, 2003; 6:26 PM
A three-judge panel in Washington struck down several major provisions of the new campaign finance law this afternoon in a much-awaited ruling, setting the stage for a final showdown at the U.S. Supreme Court later this year that will determine the shape, style and bank accounts of the nation's major political campaigns.
Nearly five months after the McCain-Feingold law was argued before the panel, most of the soft money prohibitions were declared to be unconstitutional by a 2-1 majority, possibly clearing the way for major political parties to begin raising the large, unregulated sums of money from corporations, trade unions and wealthy individuals that critics said had plagued major election campaigns during the past two decades.
That decision, like the other parts of the new law declared to be unconstitutional, is effective immediately, the panel ruled.
Barring a stay from the Supreme Court, that means campaign fundraising will enter a confusing standard of regulations, as political parties and interest groups raise funds regulated by a set of laws that may change again when the Supreme Court rules, lawyers in the case said today.
The panel also voted 2-1 to strike down the ban on most "issue ads," or thinly veiled political ads, that corporations, unions, interest groups and individuals can run on radio or television in the run-up to elections. But the court allowed the ban on a secondary definition of the ads to be enforced in more limited situations.
The 1,600-page ruling, the longest in the history of the U.S. District Court in Washington, is largely seen as at least a temporary win for free speech advocates, major interest groups such as the National Rifle Association, and the Republican National Committee, who were some of major plaintiffs among the more than 80 groups that challenged more than 20 different provisions of the law.
"The ruling restores the ability of political parties to be major unifying players in the political process, and it will stop special interest groups [who would not have faced the ban on accepting unregulated sums] from taking over," said Benjamin Ginsburg, one of the lawyers representing the RNC. Ginsburg said late today it wasn't clear if the national political committees would start raising soft money again, or wait on a Supreme Court ruling.
But the case also upheld key portions of the law -- such as barring federal office holders from raising soft money, and prohibiting the use of soft money to pay for some types of issue ads -- making the overall picture hard to call a clear victory for either side.
The case was decided by Karen L. Henderson of the U.S. Court of Appeals for the D.C. Circuit, and U.S. District judges Colleen Kollar-Kotelly and Richard J. Leon. The judges had been specially assigned to hear and decide the case on a "expedited basis"in a special process established by Congress to review the law, although their ruling took so long that it is now unclear if the Supreme Court will be able to hear the case this term. Henderson and Leon are Republican appointees; Kollar-Kotelly was appointed by President Bill Clinton. Sources familiar with the courthouse say the panel was so divided by their approaches to the case that they worked on it separately for months, with little contact between them.
Kollar-Kotelly and Leon wrote one opinion for the panel, then each judge wrote their own separate opinions. The judges were so divided that they were split 2-1 on almost all the issues. But the same two judges did not always vote together, and sometimes agreed on their vote on a particular issue, while noting they were doing so for different reasons. In general, Kollar-Kotelly voted most often to uphold provisions of the new law, while Henderson voted most often to strike down its provisions.
The impact of the legal rulings of the panel was being assessed late today by both participants and observers. Lower court opinions are no harbinger of Supreme Court decisions, and only the findings by the high court will be final. Several lawyers involved in the case said that made the legal opinions in the decision less important -- because they will be the law only until the Supreme Court decision -- than the lower court's findings of fact. That record will be the basis for the Supreme Court's decision, and thus perhaps more influential than the temporary nature of the legal rulings.
The Supreme Court's decision, meanwhile, is almost certain to become the most influential opinion on campaign finance law since it ruled in the Buckley v. Valeo case, which has governed campaign finance laws for the past quarter century.
The Bipartisan Campaign Finance Reform Act of 2002 -- better known by the names of the senators who sponsored it, John McCain (R-Ariz.) and Russell D. Feingold (D-Wis.) -- sought to plug loopholes that had cropped up since the Buckley decision in 1974.
The bill's main target was to keep corporations, unions and wealthy individuals from making large, unlimited donations of "soft money" to political parties. It also sought to ban thinly-veiled issue ads on radio and television that actually serve as attacks on opposition candidates. The law banned the use of such funds to pay for those ads within 30 days of a primary or 60 days of a general election.
The bill also sought to curb the "appearance of corruption" that supporters say the former fundraising system created, in which big-money donors could gain access to key politicians who were voting on issues that affected them.
The Justice Department, the Federal Election Commission, 19 states, two U.S. territories, several members of Congress and a handful of self-styled good government groups filed briefs supporting the new law. Soft money contributions started out as $18 million in the 1980 cycle of elections, according to the Federal Election Commission, but ballooned to $458 million by 2000, a system growing out of control, they said.
In arguments made before the judicial panel on Dec. 4, former solicitor generals Seth P. Waxman and Kenneth W. Starr squared off, with Waxman defending the law as a necessary antidote to a system overrun with big money, while Starr attacked it as a violation of the First Amendment, riddled with other problems.
Defense attorney Roger M. Witten cited polls of public dismay over the state of the electoral process, a position buttressed by a deposition submitted by Sen. Zell Miller (D-Ga.), who wrote that after a day of calling "marks" and reminding them that he was on the agriculture or banking committee and then asking for donations, he felt "like a cheap prostitute who'd had a busy day."
Opposition to the law was immediate, swift and broad.
Sen. Mitch McConnell (R-Ky.) became the lead plaintiff in the case by filing suit minutes after President Bush signed the bill into law last year. The National Rifle Association, the Republican National Committee, the California Democratic Party, the American Civil Liberties Union and dozens of others followed.
The ACLU and others said the prohibition on issue ads was a clear violation of constitutional protections of free speech, a core constitutional challenge that went back to the founding of the republic. The RNC said the law divorced national parties from their state affiliates, thereby weakening the national political structure. And when attorneys representing the plaintiffs noted during oral arguments that no one had alleged a single actual case of a donation buying a vote in Congress, Judge Leon seemed to agree, noting that appearance did not inherently equal corruption.
When oral arguments were concluded, the three judges had to work through more than 50,000 pages of evidence and 1,600 pages of briefs.
© 2003 The Washington Post Company
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