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Upon Closer Review, Court Ruling Shows Promise for CFR Case

What are we to make of last week’s court decision on campaign finance reform? When I saw the first Associated Press story about the decision, and indeed when I read the early reports in The Washington Post and Roll Call, I was disappointed (if not surprised). [IMGCAP(1)]

From the time the three judges on this oddly constructed intermediate judicial panel were named, most campaign reform mavens expected large parts of the law to be rejected by a 2-1 vote, given the background and ideology of the judges.

That view was reinforced by the oral arguments conducted by the panel late last year. To be sure, oral arguments can be misleading; sometimes judges ask provocative questions, or play devil’s advocate, then issue decisions or cast votes that contradict their seeming bent. But in this case, the chief judge, Karen LeCraft Henderson, was unremittingly hostile to every element of the Bipartisan Campaign Reform Act, while displaying little interest in the record and showing little knowledge of the law. And a second conservative judge, Richard Leon, was quite knowledgeable and nuanced but clearly skeptical, resonating particularly to arguments about federalism made by the law’s opponents.

So I, and others who had either helped construct the act or supported its structure and goals, came away believing that we would be on the losing end. We were not deeply disturbed, however, since this court was basically a way station on the road to the Supreme Court, and its critical role was more in the area of laying out the finding of facts in the case.

The Supreme Court, in a variety of recent rulings on campaign reform cases, had readily reversed appeals court decisions that curtailed enacted reforms, reiterating its faith in the Buckley v. Valeo framework that has governed the process for more than a quarter-century. My greatest concern was ensuring that the voluminous record of the case, including systematic studies of campaign behavior in the 1998 and 2000 cycles, would be considered and incorporated into the record by the panel.

The process by which BCRA had been debated in Congress was an unusually thorough one. Over a six-year period, variations of legislation written by Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) or Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.) were introduced, revised, re-revised, amended and debated numerous times. What emerged was a product done in a deliberative fashion, relying heavily for its reasoning and its substance on this body of research and the observations of scholars and practitioners who have studied and operated for decades in the money game in American politics. The studies documented the changes that have taken place in the political environment since Buckley in 1976, creating a fact-based rationale for reform.

The key provisions of BCRA were drafted carefully with a constant eye on the reasoning behind Buckley, and the debate on the House and Senate floors made frequent reference to the reasoning and data base behind the choices. For any court with serious judicial restraint, providing even a wisp of deference to Congress, this was a model of a deliberative process. It was more carefully done and considered than any set of issues I have witnessed or been involved with over the years. [IMGCAP(2)]

Our hope was that honest, conservative judges, like Chief Justice William Rehnquist, would react the way Rehnquist had in a previous campaign reform decision, Massachusetts Citizens for Life: “We are obliged to leave the drawing of lines such as this to Congress if those lines are within constitutional bounds.” Whether one likes the results or not, this is Congress’ job, unless it blatantly crosses clear constitutional lines.

Now I have read most of the nearly 1,700 pages in the opinion, including the per curiam opinion of Leon and Kollar-Kotelly laying out the decision, and the three separate opinions of the three judges. And I am a happy camper.

Of course, some of the press reports are accurate — this is a confusing jumble of a decision, requiring a 15-page chart just to lay out all the specifics, including floating 2-1 judgments involving whole sections, parts of sections, pieces of parts of sections, etc., along with an occasional 3-0 sliver to jolt one awake. And the ruling does leave some soft money intact and rejects some portions of the electioneering communications sections in the law. But the suggestion that the court ruling guts the law, or invalidates its main provisions, is simply wrong. The Washington Post, in particular, has to stop relying largely for its feedback on the campaign consultants and campaign lawyers who have a strong vested interest (not to mention their Mercedes and livelihoods) tied up in the soft-money system.

The ruling blocks any soft-money usage for so-called “issue ads” and blocks federal office-holders and federal candidates from soliciting soft money. And if it rejects Sens. Olympia Snowe (R-Maine) and Jim Jeffords’ (I-Vt.) “bright line” test for electioneering communications masquerading as issue ads and run 30 days before a primary or 60 days before a general election, it embraces the backup definition, one originally set out by an appeals court in the Furgatch decision, one that is more sweeping and has no time limits — making it even more powerful.

Now, the group in South Dakota planning on running hundreds of thousands of dollars worth of ads trashing Senate Minority Leader Tom Daschle (D) in the runup to November 2004 cannot use corporate or union funds to do so. And it will have to disclose its larger contributors (no doubt few of whom are South Dakotans) to the Federal Election Commission.

The heart of the ruling — and the heartening aspect of the ruling — is in the first few pages of Leon’s memorandum opinion. He refers to BCRA as a “considerable legislative achievement,” “the latest chapter in the history of a longstanding and recurring problem that our government has been wrestling with since the administration of Theodore Roosevelt.”

He says, “I find that the defendants have more than adequately demonstrated the constitutionally necessary basis for Congress: (1) to restrict the use of soft-money donations by national, state, and local parties to fund certain types of campaign communications (particularly candidate-advocacy “issue” advertisements) which are designed to, and which do, directly affect federal elections; and (2) to restrict the airing of corporate and union electioneering communications which promote, oppose, attack, or support specific candidates for the office which they seek.”

He finds a number of areas where the defendants (i.e., the law’s authors in Congress) did not succeed in staying within constitutional bounds. But, he says, “As to those where they succeeded, I believe it would make a mockery of existing Supreme Court precedent and the regulatory scheme that it has heretofore blessed, to hold otherwise.”

Think about it. This is a conservative judge, a George W. Bush appointee, a Federalist Society member, who gives due deference to Congress’ seriousness of intent to write a law to deal with a real problem that fits within the framework of Buckley and its progeny. I may disagree with him on many of the specific areas where he finds the effort over the line (as does Kollar-Kotelly, who found nearly all of BCRA constitutional). But if Leon views the law this way, there is a great likelihood that Justices Rehnquist and Sandra Day O’Connor — or even a new justice, if one is replaced — will have a similar broad view, and may well see other portions of the law, including the original Snowe-Jeffords “bright line” test, as legitimate.

Only the diehard opponents of the original Buckley decision, on the other hand, will be likely to resonate to Henderson’s shrill, rigid dissent, which gives the back of a hand both to Congress and to the Supreme Court’s precedents.

I still would not place a bet on the vote in the Supreme Court, since we don’t know when the court will hear the case, or who the justices will be. But Leon has largely vindicated the careful process Congress, through the efforts of McCain, Feingold, Shays, Meehan, Snowe and Jeffords, along with Daschle, Rep. Richard Gephardt (D-Mo.) and other leaders, took to make their case in a rational and deliberative fashion. Those efforts have set the table for a Supreme Court ruling that may well give Sen. Mitch McConnell (R-Ky.) and Floyd Abrams permanent dyspepsia.

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