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Stay Splits Lawyers Challenging BCRA

Even as the National Rifle Association cheered the decision by a panel of federal judges to stay its decision on the Bipartisan Campaign Reform Act, a move that will allow the group to immediately begin airing issue ads, attorney James Bopp lashed out at the gun owners’ organization and other plaintiffs in the landmark case for contributing to what he feels was a strategic defeat for opponents of the statute.

“The atmosphere created by the notion that both plaintiffs and defendants thought the ruling [on electioneering communications] should be stayed — I just think facilitated the stay of the whole thing,” Bopp fumed. “So now, political parties that had won 90 percent of their case [with the three-judge panel’s May 2 decision] have now lost 100 percent.”

The NRA, along with the American Civil Liberties Union, had asked the court to stay only the provisions of Title II of BCRA, which relate to issue advocacy.

In court filings, the NRA indicated that Congress’ definition of electioneering communications — which restricts advertising that features or refers to a federal candidate within 30 days of a primary or 60 days of a general election — was slightly less offensive than Judge Richard Leon’s recrafted definition, because of the wiggle room it provides. Leon’s definition, by contrast, would have immediately regulated ads paid for by corporations, labor unions and others that “attack” or “promote” a federal candidate.

However, Bopp, a longtime ally of Sen. Mitch McConnell (R-Ky.) and counsel to the National Right To Life Association and myriad other plaintiffs who are trying to have BCRA overturned, had hoped that others would support his move seeking to have both definitions — Congress’ and Leon’s — thrown out.

Bopp — who is considering an appeal of the stay — fired off an angry missive via e-mail Tuesday blaming McConnell’s counsel and others for having contributed to the court’s 2-1 decision to suspend enforcement of their May 2 decision and, in effect, restore BCRA in its entirety until the Supreme Court can rule in the case.

In an interview Tuesday, Bopp complained that in pursuing a stay of Judge Leon’s rewritten definition of electioneering communication, the NRA and McConnell’s lawyers were in effect “making a deal with the devil” and one that may have grave implications.

“They had a Hobson’s choice. Like someone in a concentration camp, someone has Hobson’s choices often, but what is the solution to that? To liberate them from the concentration camp — that’s the solution,” Bopp said. “Not screw me now or screw me later, which is exactly what we have now, but [a choice which] protect our rights at all time.”

Indeed, McConnell’s attorneys noted in their own court filings that the choice between the two definitions was a difficult one.

“Choosing between these provisions is the constitutional version of Poe’s ‘The Pit and the Pendulum,’ Neither choice is acceptable; both are lethal,” attorneys Floyd Abrams and Kenneth Starr explained in a recent court filing. “Forced to choose, however, we believe the NRA Plaintiffs and the ACLU have correctly identified the one feature of the primary definition that makes it less intolerable at this time than the newly crafted fallback definition: it only takes effect in the month or two before elections.”

But Bopp said he simply cannot swallow that explanation.

“It exchanged relief from temporary pain for long-term damage,” Bopp said, noting that seven months from now, when organizations try to run issue ads in the midst of presidential primaries and caucuses, they will be bound and gagged by the stayed decision they requested.

Moreover, Bopp said he can’t believe that opponents of McCain-Feingold, in effect, handed the sponsors of the law a victory.

The court’s 2-1 decision Monday to stay its entire decision was music to the ears of supporters of the McCain-Feingold law, who were particularly concerned about the court’s fracturing of the bill’s soft-money ban.

“I think the problem was when you had both plaintiffs and defendants seeking a stay of a ruling, it just creates an environment where that will happen,” Bopp remarked. “While it was true that the NRA, and by the way, Senator McConnell, were only seeking a limited stay, they were seeking a stay. In other words, they too were saying that at least to a certain extent, the lower court ruling should not carry any weight.”

Abrams, who along with Starr is leading McConnell’s legal team, defended the NRA’s actions and his support of them.

“It was perfectly reasonable I think for them to take the path of seeking a stay. Chances weren’t very strong in their favor, but seemed to me a perfectly reasonable effort on my part,” Abrams said. “The only one I thought had no chance at all to succeed was Mr. Bopp, who was asking the court for an affirmative injunction which would have in effect left in place our victory and overturned our defeat.”

Continued Abrams: “That certainly is what all Title II plaintiffs would have wanted to achieve, but it was always most unlikely that it would succeed. So my own reaction is that while this is an area to which reasonable people could disagree strategically, that the successful effort of the NRA and the ACLU with respect to Title II was, on balance, better than doing nothing at all and far more likely to succeed rather than what Jim Bopp wanted to do.”

In addition, Abrams believes the Supreme Court will resolve the issue sufficiently in advance of the time that the principal definition of electioneering communications, as written by Leon, will be triggered.

“I think there’s a good chance that we’ll have a final answer to all these problems by the end of the year. And if we do, that should resolve the core problems visited on potential speakers in ample time to be able to speak out fully in the 2004 election,” Abrams said, explaining that the stay allows folks a “little more temporary freedom.”

But Bopp dismissed Abrams’ contention that the case will be settled any time soon.

“That is a dream. That is an absolute fantasy. There are plenty of substantive provisions. There are 84 plaintiffs. There are 22 sets of lawyers,” Bopp said. “There is just simply no way that the Supreme Court is going to hear and decide this case by December.”

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