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McConnell Appeals BCRA Decision; Proponents May Seek Stay

Mere hours after a U.S. District Court panel scrapped numerous sections of the Bipartisan Campaign Reform Act on Friday, Sen. Mitch McConnell (R-Ky.) filed the first notice of appeal in the case.

“At its core, this is a case about the First Amendment,” McConnell’s filing stated. “BCRA constitutes a frontal assault on First Amendment values, the likes of which have not been seen since the Republic’s infancy.”

While parties have 30 days to file a notice of appeal, legal sources speculated that the Senate Majority Whip is eager to make sure that his name remains stamped on the landmark case that will decide the future of elections for many years to come.

Meanwhile, as they continue to analyze the 1,600-plus-page decision, defenders of the law are working behind the scenes to move for a stay of the court’s decision, a move that would potentially leave the law intact until the Supreme Court decides the issue.

But those involved in the effort acknowledge that a stay is a long shot. The team first must seek a stay at the district court level but can appeal that decision to the Supreme Court.

“Getting a stay is very difficult,” explained one lawyer involved in the process. “You have to prove there’s an imminent opportunity to be irreparably damaged and that you’re likely to be successful on the merits of the case.”

Nonetheless, attorneys representing the defendants said this case is “unusual” in all respects and indicated they are prepared to make the case that the district court’s decision will “throw the political system into turmoil” if it is allowed to stand.

Trevor Potter, a member of the legal team defending the law, said no decision has been made at this time.

“We are analyzing whether or not to ask the district court to stay any portion of its decision and we don’t have a conclusion,” Potter said.

He added: “Our consensus view, in light of the fact that we’re looking at a six- to seven-month period before the law changes again, is that it would make sense for the court to freeze the status quo where it’s been.”

Potter and other defenders of the McCain-Feingold law seemed most disturbed by the district court panel’s decision to repeal part of the soft-money ban.

“The decision recreates a portion of the discredited soft-money system by allowing party committees (but not the House and Senate campaign committees) to raise and spend soft money for generic political activity,” according to a statement from Potter.

That sort of spending, he argued, is typically “used by the parties to directly affect Federal elections” and it’s nearly impossible to distinguish between the different uses of party soft money.

Lawyers for opponents of the law, such as the National Rifle Association, said they are also contemplating whether they will seek a stay of any portion of the court’s decision, but for different reasons.

The group is opposed to the three-judge panel’s treatment of the definition of electioneering communications. Curiously, the court struck down a definition that would have distinguished such ads from legitimate issue advocacy if they refer to a specific candidate within 30 or 60 days of an election and chose a broader and more vague definition.

While McConnell was the first to pounce on the appeals process last week, others began to follow suit on Monday.

The National Voting Rights Institute, which is challenging the hard money contribution limit increase, filed its appeal on Monday, and a lawyer representing the NRA said the group is planning to file its appeal with the Supreme Court Monday night or Tuesday morning.

McConnell’s 27-page filing — officially called a “jurisdictional statement” — is a formal part of the appeal process that clearly frames the issues in the case.

Specifically, the filing asks whether the district court erred by upholding portions of the soft-money and electioneering communications provisions.

The statement also asks if the lower court erred by holding that challenges to other sections of the law — including “advance notice” provisions, “coordination” provisions and “attack ad” provisions” — were “nonjusticiable.”

The document, which was signed by Floyd Abrams, Kenneth Starr and a slew of other lawyers, did not seek to have the high court reconsider the constitutionality of the so-called millionaires amendment, a controversial provision that was cited in McConnell’s original challenge of the statute.

McConnell’s lawyers also filed a motion asking if they might avoid printing costing duplicates of the appeal.

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