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BCRA Opponents Urge Cautious Approach by Supreme Court

Speaking at a CATO forum today, supporters and opponents of the Bipartisan Campaign Reform Act found few areas of agreement other than their hope that the Supreme Court will reach a more concise decision than the mammoth opinion recently released by a U.S. District Court panel.

“I think everyone or virtually everyone is sensing that it is quite unlikely that the court will hear the case this term, but the court will work its will,” said former Independent Counsel Kenneth Starr, an attorney leading Sen. Mitch McConnell’s (R-Ky.) fight to overturn the law.

Starr added that he encourages the court to be as “orderly as it can be” because of the high-stakes nature of the litigation, but he also cautioned the court and its observers to be patient.

“This is very complex material — very complex material. It should be briefed in an orderly way and argued in a manner that will be generally helpful to the courts,” Starr said. “Haste makes waste.”

Jan Baran, also an opponent of the new law, quipped that if the recent “four opinions by the three judges” is any sort of a clue to the final outcome of this case, people might expect 12 opinions “constituting over 10,000 pages” from the Supreme Court.

As the experts offered both light-hearted and passionate assessments of the three-judge panel’s decision, the latest phase in the legal battle grew even more heated.

The National Rifle Association on Monday asked Chief Justice William Rehnquist for an immediate stay of the panel’s decision as it pertains to the definition of electioneering communications.

Last week the organization filed a similar motion with the U.S. District Court, but the new request seeks immediate relief from provisions of the law that the group insists are inflicting damage and restricting the NRA’s freedom of speech.

Defendants of the new law, including the Federal Election Commission, the Justice Department and its Congressional sponsors, have filed their own motions asking that the district court stay its entire opinion and allow BCRA as passed by Congress to govern ongoing campaign activity.

Baran, a GOP election lawyer, said today that he believes the best course of action would be for the court to do neither, but actually to restore campaign finance law to its pre-BCRA status, an approach that, while intriguing, does not appear to be under serious consideration by any parties involved in the suit.

“The issue is not whether you stay, but what do you stay and what do you go back to,” Baran explained at the CATO event, titled “The Campaign Finance Decision: What Does it Mean and Where Do We Go From Here?”

“We now have a reform statute which I noted has been declared unconstitutional in many respects. … One solution would be, ‘Let’s go back to the original law, pre-BCRA,’” Baran said, while emphasizing that this course of action has not been officially suggested by any litigant in the case.

Trevor Potter, a former FEC commissioner and an attorney working for the defendant-intervenors, flatly rejected that idea and defended BCRA.

“I think the answer is clearly that the Congress, having voted by majorities in both chambers to change the law, and the president having signed it, we believe that the election ought to be held under the new law,” Potter remarked.

While Starr lambasted the three-judge panel for its “judicial recrafting of Title II” of the law, which deals with issue advocacy, and referred to the opinion as a “cacophony of disharmonious voices,” he did praise the court for finding four provisions of McCain-Feingold unconstitutional. Among those provisions was a ban on contributions by minors.

Starr reserved particular ire for U.S. District Judge Richard Leon’s rejection of Congress’ definition of electioneering communications in favor of a “more encompassing invalidation of free speech.”

“That is quite stunning,” Starr said. “It forbids more speech than BCRA forbade. That’s quite an accomplishment.” Potter, however, praised the court’s findings and defended the amount of time the panel took to reach its split decision.

Noting that the compiled record in the case — consisting of enormous stacks of depositions, affidavits and briefs — totaled more than 100,000 pages in length, Potter said the judges ought to be “commended for their five months of work.”

Potter praised Judges Colleen Kollar-Kotelly and Leon — who came up with the controlling opinion on the issue-advocacy section of the law — for establishing in their opinions that “candidates are beholden to corporations and unions” who fund issue ads. Such activities, he noted, give rise to a public perception that the candidate is being directly benefited from such activities and will directly reciprocate to those corporations, unions or individuals who financed them.

Randy Moss, another lawyer on the team representing Congressional sponsors of the law, favorably discussed the court’s findings in the area of soft money.

“When folks picked up the opinion on Friday night, the initial reaction was that soft money did not fare very well,” Moss said, adding that such a “perception has changed substantially.”

“There is more good news in it for soft money than there is bad news,” Moss said in assessing the court’s decision. He noted that the court affirmed the ban on federal officeholders and candidates from raising soft money and also upheld the soft-money ban for the parties with respect to direct federal election activity.

“This is not simply about broadcast ads,” Moss said. “It’s about mass mailings, phone banks, any types of broadcast ad — if that communication mentions a federal candidate, these unregulated funds cannot be used.”

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