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With each passing day, the mystery grows: Why hasn’t the three-judge federal court panel in D.C. issued its ruling yet on the McCain-Feingold campaign finance reform law? The panel itself, at arguments in December, indicated it was well aware of the need to move quickly. Most lawyers left the courtroom expecting a ruling in January. Are the judges confounded by the mass and complexity of the litigation, with 84 plaintiffs and dozens of constitutional issues? Are they squabbling over the content and quality of the draft opinions? A conspiracy theory is even making the rounds: Is one of the judges trying to run out the clock on the Rehnquist Court, hoping that the panel’s eventual ruling will be appealed to a Supreme Court with one or more new members? But even as theories ricochet among election lawyers and advocacy groups on both sides of the campaign finance debate, a dismal, ultimately more important realization is settling in: The 2004 presidential campaign has begun under a set of fund-raising rules that could be tossed out in whole or in part perilously late in the game. The clock is ticking. The panel’s delay makes it increasingly unlikely that the Supreme Court will be able to rule this term on an appeal of whatever decision emerges from the three-judge panel. That, in turn, could mean no final decision on the constitutionality of the Bipartisan Campaign Reform Act until early 2004, around the time of the start of the presidential primaries. So agitated are the parties to the litigation that at least some have researched the possibility of a risky legal maneuver, the courtroom equivalent of rescuing a soldier from behind enemy lines: seeking a writ from the Supreme Court that would order the panel to issue its ruling forthwith, or risk having the high court yank the case away without a decision. “It would raise significant constitutional questions and would be very hard to pull off, if not impossible, but it has crossed our minds,” says one key lawyer in the case, who declined to be identified. The long-term limbo over constitutionality is “just what Congress wanted to avoid when it put an expedited appeal process into the legislation,” says Fred Wertheimer, president of Democracy 21, a leading defender of the law. “If it isn’t decided by summer, it will seriously disrupt the 2004 election.” In fact, the disruption has already begun, says Bobby Burchfield, a partner at Covington & Burling and a lawyer for the Republican National Committee in its challenge of the law. Parties are abiding by the law, whose implementation was not postponed pending the appeal. In addition to cutting off soft-money donations to parties, Burchfield says, the law is fundamentally altering the relationship between national and state parties. With important off-year elections this fall in Virginia, Louisiana, Mississippi, New Jersey, and Kentucky, Burchfield says the law is “already undermining the ability of parties to work effectively.” The impact is being felt, says Burchfield, because “under this statute, it is a felony for the national political party to raise money for state and local candidates.” At the national level, meanwhile, presidential candidates are already soliciting and receiving from individuals $2,000 donations allowed under the new law, twice the amount that was formerly permitted. It is uncertain whether they would have to give $1,000 back if the law is struck down later in the campaign. The judges on the panel are Colleen Kollar-Kotelly and Richard Leon of the U.S. District Court for the District of Columbia and Karen LeCraft Henderson of the U.S. Court of Appeals for the D.C. Circuit. Kollar-Kotelly was appointed by President Bill Clinton, Leon by President George W. Bush, and Henderson by the first President Bush. None of the three judges would comment for this story. “The case is under submission. Any comment would be inappropriate,” Henderson said in a statement from her office. But one source familiar with the court’s operation said the panel has been working “feverishly,” with its members setting aside most of their other cases since the matter was argued Dec. 4. “The last thing they want is for the case to be remanded for further findings. They want to get it right the first time.” If the panel strikes down some or all of the new law, it is also unclear whether it would stay its ruling or stay the law, pending Supreme Court review. Depending on what the panel stays, and what the Supreme Court does when it takes up the case, the rules of the campaign could in theory flip back and forth, creating more disarray. For now, it is difficult to measure precisely how serious the calendar crunch is, in part because the Supreme Court governs its schedule by tradition, not precision. If the three-judge panel issues its ruling this week, for example, even an expedited briefing schedule would put oral arguments before the Supreme Court in mid-May or later, well past the usual ending date for the high court’s argument calendar for the term. The Court has made exceptions in the past, and informal signals have come from the Court that the justices will “leave the lights on” for a late appeal, in the words of one official. But at a certain point, the realities of the Court’s rhythms will set in. June will already be a crunch time for the justices, with complex decisions pending on issues including gay rights and affirmative action. The Court traditionally adjourns in late June or early July, and soon after, many justices pack their bags and leave Washington, if not the continent. Chief Justice William Rehnquist and Justice Anthony Kennedy, for example, are already scheduled to teach law school classes in Austria in early July, as they do most summers — Rehnquist in Innsbruck and Kennedy in Salzburg. “I am resigned to the likelihood that the case will not be resolved by the Supreme Court in the current term,” says Charles Cooper of Cooper & Kirk, a former Rehnquist law clerk who challenged the campaign law on behalf of the National Rifle Association. The Court has postponed its summer hiatus in the past, but only for the most extraordinary cases. The Watergate tapes case, United States v. Nixon, was argued July 8, 1974, and decided July 24, with President Richard Nixon resigning a few days later. Ex parte Quirin, the case testing the use of military tribunals for captured German saboteurs, was argued July 29, 1942, and decided summarily two days later, with a written opinion issued that October. In 1958, Chief Justice Earl Warren, angered by resistance to the desegregation of Little Rock, Ark., schools, summoned the Court back to Washington for an Aug. 28 hearing. Cooper v. Aaron was issued September 12, three days before schools were set to open. Today, at least some of the justices’ current law clerks continue to work through the summer, and with modern technology, it is conceivable that the Court could work on and issue a ruling during the summer, no matter where the justices are. But that scenario is clouded by the possibility that Rehnquist and even another justice may announce their retirement as the term ends. Even though a retiring justice’s actual departure might not come until a replacement is confirmed, it would be awkward at best for the campaign finance case to be under active consideration through the summer and during confirmation hearings for a new justice. The possible retirement of Rehnquist or Sandra Day O’Connor, as well as the fact that they are viewed as fairly reliable votes in favor of campaign finance regulation, has fueled the most sinister — and probably unlikely — explanation offered for the panel’s delay. Under this view, which has been the talk of the election law bar for weeks, one or more of the three judges on the D.C. panel is delaying the ruling in the hopes that the composition of the Court will change before it takes up the appeal of the panel’s decision. If Rehnquist or O’Connor or both are replaced by conservative justices who, like Clarence Thomas, oppose virtually all campaign regulation as a violation of the First Amendment, then McCain-Feingold would be a dead letter. Burchfield, for one, quickly dismisses the theory as “extremely bizarre. I don’t know anyone in the world who is smart enough to predict the composition of the Supreme Court.” Besides, he adds, “my mom told me not to believe rumors.” But the theory had enough currency that many experts in the field were relieved when National Public Radio’s Nina Totenberg offered a more straightforward explanation for the delay — a split among the three judges deliberating the case. In a March 29 report on the weekend edition of “All Things Considered,” Totenberg reported that Kollar-Kotelly and Leon were “appalled” when they saw Henderson’s draft statement of the facts — a document that Henderson apparently started writing before the panel heard the case last December. Kollar-Kotelly and Leon set out to write their own rendition of the facts, according to Totenberg, contributing to the delay and creating tense and “frosty” relations among the judges. The resulting opinion, when it is finished, could top 1,000 pages, she also reported. Election law expert Richard Hasen, a professor at Loyola Law School in Los Angeles, like others, thinks the real explanation is simply that the judges found it “a lot harder to construct an opinion than they thought going in.” Kenneth Gross, an election law specialist and partner in the D.C. office of Skadden, Arps, Slate, Meagher & Flom, agrees it is a complex case but adds, “There are a lot of complex cases out there. Bush v. Gore was complicated, and it took the Supreme Court a few days to decide. I can’t imagine what is taking this panel so long. They have succeeded in jamming the Supreme Court.” But whatever the reason, Hasen thinks that “the end result will be what I have been predicting all along — the constitutionality of the statute will turn on who retires this term.” He adds, “The delay is inexcusable.” One key lawyer involved in the case is less perturbed by the delay, and amused at all the hand-wringing about its impact on the 2004 election. Jan Baran, a partner in D.C.’s Wiley Rein & Fielding who is part of the legal team challenging the law, notes that Buckley v. Valeo, the Supreme Court ruling that is the touchstone for campaign finance litigation, was handed down in January 1976, just as that year’s presidential campaign was beginning. Among other things, the ruling in Buckley had the effect of abolishing the Federal Election Commission as it was then composed. The composition of the Court also changed during the high court’s consideration of Buckley. Justice William O. Douglas listened to the oral arguments but retired before a ruling was issued. His successor, John Paul Stevens, did not participate. “This is hardly a unique situation,” says Baran. “It all worked out back then.” Baran thinks it was unrealistic for the judges or anyone else to expect a ruling in two months. “There are 11 separate lawsuits with 84 plaintiffs, against three defendants, with a million pages of documents in the record, raising 50 separate constitutional issues,” says Baran. “Sometimes whole terms pass in which the Supreme Court does not decide 50 constitutional issues.”

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