Courtroom coalition

National | President signs campaign-finance law: Political speech restrictions drive ideological opponents together to fight the new law in court

Issue: "The $10 billion gamble," April 6, 2002

in Washington-After an exhaustive probe that ordered 81 depositions of 48 people, demanded the production of more than 100,000 documents, and stretched over six and a half years, then-president of the Christian Coalition Pat Robertson declared that he had won an "important victory" over the Federal Election Commission in 1999. This victory cost the coalition hundreds of thousands in legal fees-and probably more, FEC commissioner Bradley Smith told WORLD: "You could trace the real decline of the Christian Coalition through the 1990s right through the period the FEC was investigating, even though the investigation failed." Liberal groups normally wouldn't shed a tear over the demise of the Robertson-backed coalition, but the idea of a more muscular FEC is enough to drive them into a courtroom coalition with their ideological opponents to fight the new campaign-finance restrictions that became law last week. Mr. Smith and his colleagues on the FEC must develop new regulations to enforce the McCain-Feingold campaign reforms. They have 90 days from March 27, the date President Bush signed the law without fanfare in the Oval Office in the early morning, joined only by Vice President Dick Cheney, National Security Adviser Condoleezza Rice, and a handful of aides. A new law of this magnitude usually merits a big bill-signing ceremony, complete with souvenir pens, journalists, cameras, and happy lawmakers. Reporters covering the president, who was wrapping up a Latin America trip earlier in the week, pelted him with questions about whether he was hesitant to sign the bill. "It will probably take about three seconds to get to the W," Mr. Bush joshed. "I may hesitate on the period, and then rip through the Bush." But opponents of the new law believed the president's signature ripped through the First Amendment, and filed suit almost immediately at a federal courthouse down the street from the White House. Sen. Mitch McConnell (R-Ky.), the leader of the crusade against a crackdown on interest groups, was among the first to file. Right after the McCain bill passed the Senate, Sen. McConnell announced a heavy-hitting team of six lawyers to handle the case. Leading the list of names were Floyd Abrams, the liberal First Amendment attorney who represented The New York Times over its leak of the Pentagon Papers during the Vietnam War, and Ken Starr, the conservative former federal judge, solicitor general, and Whitewater independent counsel. The list also included liberal Stanford law dean Kathleen Sullivan, conservative lawyer James Bopp of the James Madison Center for Free Speech, and experienced election lawyers Bobby Burchfield and Jan Baran. Amused at the diversity of the "dream team," Mr. Abrams declared "there are no strange bedfellows where the First Amendment is concerned," and suggested that a visitor from a distant planet would see the bill and ask, "Are you seriously telling us that when speech matters most, we will allow it least?" Mr. Starr called the new campaign law a collection of "complicated and at times bizarre regulations," and said questions of whether it would ever fly with judges "have tended to be dismissed in the popular media, but it is now time for the courts to speak authoritatively." Sen. McConnell's team wasn't the only one racing to the courthouse steps. A coalition of nonprofit groups that often claw and scratch at each other, from the National Right to Life Committee on the right to the Alliance for Justice on the left, have been fighting the possibility of government investigators knocking on their doors with wheelbarrows for documents. The National Rifle Association filed its complaint first, and officials of the American Civil Liberties Union and the U.S. Chamber of Commerce have also declared they will file suit against the law independently. With all these erstwhile enemies joining ranks, TeamBush finds itself in the position of having to go to court against its friends. Ted Olson, the solicitor general, routinely represents the government in cases like these when they come before the Supreme Court. Nongovernmental supporters of the new campaign law don't want a legal defense as reluctant as the bill-signing, so they are assembling their own team of top lawyers, including former Clinton solicitor general Seth Waxman, former Federal Election Commissioner Trevor Potter, and former ACLU lawyer Burt Neuborne, now with the Brennan Center for Justice at New York University. Experts suggest the shakiest part of the bill is the provision aiming to prevent individuals and interest groups from airing a radio or TV advertisement mentioning the name of a federal candidate within 30 days of a primary election or 60 days of a general election, unless it's funded with small contributions through a legally recognized political action committee. In a statement accompanying the bill signing, the president declared he has "reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election." Sen. McConnell's team is clearly targeting the 60-day speech limits as the most obvious affront to free speech. Sen. McCain and his allies expected the bill to face court challenges, and designed it to move expeditiously through a three-judge panel at the D.C. District Court, then on to the Supreme Court. Both sides are expecting a landmark decision that will build up or tear down the 1976 decision in Buckley vs. Valeo, the last major campaign-finance ruling. In that case, the court clearly rejected campaign-speech limits, which passed Congress in 1974, that are similar to the McCain provisions. The Buckley decision (and another often-cited Supreme Court decision, Federal Election Commission vs. Massachusetts Citizens for Life in 1985) found that ads mentioning federal candidates were lawful except for "express advocacy," language that clearly urged the viewer or listener to vote for or against a candidate on Election Day. Even before the courts rule, the campaign-finance reform lobby is already moving on to new battles for greater restrictions, and working to compel the FEC to enforce the law zealously. The campaign group Common Cause calls the FEC "the Failure to Enforce Commission," and Sen. McCain has been talking about trying to "overhaul or replace" the FEC. Their resentment is focused on two Republican FEC Commissioners-Mr. Smith and David Mason-who exchanged letters with House Republicans opposed to the bill. Before he became a commissioner, Mr. Smith wrote a cover story for National Review and an op-ed in The Wall Street Journal outlining his belief that the bill was unconstitutional, and Mr. Mason gave a speech at the Heritage Foundation (where he used to work) arguing that the bill was unworkable in practice. Sen. McCain's forces want the FEC to be a force for "robust" litigation against political ads, but the courts have not been receptive in the last decade to such efforts. In 1997, federal judges even ordered the FEC to pay the court costs of the Christian Action Network over a commercial that suggested Bill Clinton and Al Gore favored a "pro-homosexual agenda." FEC lawyers acknowledged that CAN had not directly called for voters to reject the Clinton-Gore ticket, but argued that it "unmistakably" signaled its opposition through the "meaning behind" the use of imagery, film footage, and background music. In his court filing, Sen. McConnell ominously noted that the McCain bill "directs the FEC broadly to define the term 'coordinated activity.'" But the FEC's Mr. Smith says some in Congress have attacked his commission's narrow definitions of "coordination" to the common-sense notion of actual agreements between parties on a strategy, instead of the guesswork the FEC did in the Christian Coalition case. He worries about the new law's effects on political discourse even if the FEC's enforcement efforts fail, as they did in the 1990s. "You don't have to win to send a chilling effect throughout the process."

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