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On the subject of campaign finance reform, achieving consensus is difficult. But within a week of the already infamous ruling in McConnell v. Federal Election Commission, both sides in the debate agreed on one thing: that some aspect of the printer-busting decision is so awful that implementation of the ruling needed to be stopped. Under an accelerated schedule promulgated by the three-judge panel that issued the 1,638-page decision, parties in the case had until noon on May 9 to request stays. And so they did: Groups ranging from the National Rifle Association to the sponsors of the McCain-Feingold bill itself filed with the three-judge court. A ruling could come as early as this week. But behind some of the filings was an unstated assumption on which there also seems to be a growing consensus: that the Supreme Court will not hurry the challenges to the McConnell decision onto its docket for resolution this term. Instead, it seems more likely to some that the high court will set a schedule that makes a final ruling unlikely before year’s end. With that calculation in mind, parties realized that without a stay, whatever aspect of the lower court ruling they found intolerable would be around awhile. “The Supreme Court has been handed this monstrosity. To expect them to give a considered decision this term is unrealistic,” says election law expert Kenneth Gross of the D.C. office of Skadden, Arps, Slate, Meagher & Flom. “We are looking at the fall at the earliest, and perhaps the winter.” That perception may also weigh on the three-judge panel as it considers the stay applications attacking its ruling from all sides. “The more people ask, the more plausible it is that the court will grant a stay,” says Floyd Abrams of New York’s Cahill, Gordon & Reindel, lawyer for Sen. Mitch McConnell (R-Ky.) and the National Association of Broadcasters. After the feverish first response to the Friday afternoon issuance of the ruling May 2, the pace among parties last week seemed to slow somewhat, in part because of the perception that appeals may proceed on a longer time line. Lawyers read and reread parts of the ruling to see what previously unnoticed landmines it might offer up. Even late last week, few lawyers boasted outright that they had read the entire decision. Some thought was given nonetheless to which lawyers might actually argue the appeal before the Supreme Court. Former Solicitor General Kenneth Starr of the D.C. office of Kirkland & Ellis, part of the team challenging the law, discounts rumors that he would get the nod. “It’s too early to tell,” Starr says. Noting that at least four lawyers argued in Buckley v. Valeo, the 1976 campaign finance case, Starr adds, “One thing we have is plenty of lawyers.” Another member of the challengers’ team, who declined to be named, was more blunt: “There will be a real struggle for the podium.” Last week also brought a notable shift in the way that the panel’s ruling was perceived. The decision was viewed at first by many lawyers and journalists as a sizable victory for the First Amendment and a substantial defeat for the sponsors of the Bipartisan Campaign Reform Act, known colloquially as McCain-Feingold. But last week, the bill’s supporters were sounding more content, and its critics more strident, as they sifted through the decision. “Much of the initial press reporting on the case was incomplete or misleading, and should be read cautiously,” warned Donald Simon, general counsel of Common Cause, in a memo to members. Common Cause supports McCain-Feingold. The shift in perception came as both sides focused on what may be the most significant aspect of the ruling: U.S. District Judge Richard Leon’s rewriting of the rules on “electioneering communications,” or sham issue ads that the law aimed to prohibit. As written, the law made it a crime for union or corporate funds to be used for any broadcast communications that refer to a candidate for federal office 60 days before an election or 30 days before a primary. Leon, who sits in the District of Columbia, struck down that provision as overly broad — in an opinion joined by Judge Karen LeCraft Henderson, who sits on the U.S. Court of Appeals for the D.C. Circuit. But then Leon, this time joined by fellow trial Judge Colleen Kollar-Kotelly, upheld a so-called backup definition that was included in the law in case the 30-day/60-day provision was struck down. Under this broader definition, use of third-party funds for any ad that “promotes or supports . . . or attacks or opposes” a candidate is banned — whether or not the “magic words” of electioneering or express advocacy are used. Congress added a limiting phrase to the backup provision, confining the ban to advertising that is “suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.” But Leon’s controlling opinion struck down that phrase as “unconstitutionally vague.” Leon said groups could seek advisory opinions from the Federal Election Commission to determine if their communications are covered by the law. The net effect of Leon’s determination was to broaden significantly the ban on advocacy group advertising and to remove any time limits on when the ban took effect — meaning that an ad broadcast today could run afoul of the law, even though the presidential election is 18 months away. “It took a couple of days to sink in,” says Joel Gora, associate dean of Brooklyn Law School, who was one of the American Civil Liberties Union’s lawyers in McConnell — as well as in Buckley 27 years ago. “But we realized that if the ACLU wants to run an ad criticizing Bush on civil liberties, we would be committing a crime. . . . How can it be that if we criticize President Bush, we have to ask the government for permission? It’s an enormous problem.” The National Rifle Association was quick to challenge this aspect of the ruling in its stay application to the three-judge court. The NRA had attacked the original provisions that the court overturned, but feels the decision has made things worse. According to NRA lawyer Charles Cooper of Cooper & Kirk, those provisions had “at least one — if only one — virtue: They would have had little practical impact on free speech until December of this year.” As rewritten by Leon using the backup definition, Cooper told the court, the law “immediately threatens the NRA’s speech in support of gun legislation now pending in the Congress.” This aspect of the ruling is unlikely to survive Supreme Court scrutiny, many lawyers agree. And it may, perversely, have helped opponents of the law by setting up a fat target for the Supreme Court to swing at, highlighting the law’s overall First Amendment problems. “I can’t imagine the Supreme Court upholding that one,” says Skadden’s Gross. “And I can’t imagine what was in the mind of Judge Leon.” The biggest loss for supporters of the law turned out to be the panel’s rejection of the blanket ban on soft money fund raising by national party committees. Kollar-Kotelly and Leon agreed on the evils of soft money, and ruled that officeholders and candidates may not raise or spend soft money. But Leon’s controlling view was that political parties can raise soft money and spend it for so-called mixed-use party purposes such as voter registration and “get out the vote” activities. In asking the panel for a stay, congressional sponsors of McCain-Feingold focus on this aspect of the ruling. Without a stay, they warn, parties will have “incentive to spend soft money more quickly and in greater amounts” while the decision awaits high court review. The parties, for their part, were happy with this part of the decision. “It is a substantial victory for the national parties,” says Michael Carvin of the D.C. office of Jones Day, one of the lawyers for the Republican National Committee. “It enables parties to raise soft money and spend it on the most important things that parties do.” Even as the fine points of the ruling were being picked over last week, debate continued about how much the ruling will influence the Supreme Court on appeal. A fast-track appeals process was written into the law to give the high court the benefit of fact finding by the three-judge panel, which the Supreme Court would then use to weigh the law in light of Buckley and other more recent precedents. What the panel produced instead, in the view of some, was three different findings of fact, plus three different interpretations of Court precedent that may carry little weight with justices who have become well-versed in campaign finance law over the years. So was the delay — and the verbiage — worth it? McCain-Feingold supporter Trevor Potter, general counsel of the D.C.-based Campaign Legal Center, gamely asserts that in fact the factual record is “reasonably well-organized” within the panel’s decision, and he argues that the ruling meets the objective Congress had in mind when it mandated the appeals process, with drafting help from Potter himself. “We didn’t want a situation like Buckley, which was ruled on without a factual record,” says Potter, a partner at Caplin & Drysdale. In McConnell, Potter insists, the factual record is there for the justices to use. Randolph Moss of Wilmer, Cutler & Pickering, a leading member of the team defending the statute, also notes that it will be up to the parties, in drafting the appeals briefs, to pull together the salient facts from the ruling. “It’s not intended to be beach reading,” says Moss. “The justices’ law clerks read 1,700 pages all the time.” From the opponents’ side, Abrams thinks it is too cynical to think the ruling will be ignored by the high court. “But when you have three separate findings of fact, there really isn’t much for the Supreme Court to defer to. From the Court’s perspective, what you have is three relevant briefs.” Florida International University law professor Thomas Baker, a veteran court-watcher, also says, “The three judges behaved like high-priced lawyers running the clock on a big case. Had the three judges unified behind one set of findings, at least the Supreme Court would have had to explain in a paragraph how and why it was going to ignore them.” As for the judges’ constitutional findings, Baker adds, “What these three judges understand about Buckley v. Valeo matters only slightly more to the justices than what you and I understand.” Perhaps the cleanest win contained in the opinion belongs to minors who brought a suit to challenge the law’s total ban on campaign contributions by those 17 or younger. Emily Echols, a politically active 14-year-old from Jefferson, Ga., was the named plaintiff. The three judges agreed the bar was a clumsy and unconstitutional way of preventing adults from evading contribution limits by funneling donations through their children. The minors were represented by the American Center for Law and Justice and the Madison Center for Free Speech. “Emily Echols hit it out of the ballpark,” says Gross. “Now she can spend her allowance however she wants.”

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