The
most recent victim in the war challenging the Bipartisan Campaign
Reform Act is the Christian Coalition
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Following
the Bouncing (and Deflating) Ball
in
the Discovery Phase of Campaign Finance Litigation
You need look
no further than the federal lawsuit challenging the new campaign
finance law for an example of a plaintiffthe party seeking
redressbeing victimized over and over again by the very litigation
process that is the only avenue for plaintiff relief. That case
(in which the Center for Individual Freedom is a plaintiff) exemplifies
the growing and disturbing trend in litigation of parties imposing
burdensome and absurd discovery requests, all in an effort to harass
the other parties and pervert the issues. Worse yet, as in this
case, is when the offending parties are the same governmental entities
and officers empowered by the U.S. Constitution to make the laws
and to ordain and establish the lower courts that interpret these
laws and resolve controversies.
The most recent
victim in the war challenging the Bipartisan Campaign Reform Act
is the Christian Coalition. Last week, the group asked to withdraw
from the case, citing mounting legal costs required by discovery
that is both enormously expensive and overly intrusive. This is
the same reason given not long ago by then-plaintiff Alabama Republican
Executive Committee.
While seeking
redress through litigation, it is, oddly, the plaintiffs
who have found their activities scrutinized and their books and
records sought through wide-ranging requests for information and
documents, most of which will not and should not be revealed for
privacy and proprietary business reasons. Almost none of the defendants
discovery requests go to the crux of the issues involved in challenging
the constitutionality of the law, but rather comprise a barrage
of questions and document requests that attempt to discredit and
intimidate the plaintiffs. The government, at least in some instances,
has won the battle, driving away some plaintiffs by smothering them
with voluminous and irrelevant requests, at the cost of staff time,
copy costs and expensive legal fees necessary just to respond.
Not so for the
some of the defendants, however, due, in part, to a recent decision
reached by the three-judge panel hearing the case. The Voting Rights
Institute, a plaintiff in one of the nearly dozen consolidated lawsuits,
sought a court order requiring the lawmakers who authored the new
campaign finance law to answer questions and provide documents about
their interactions with contributors over the past 10 years, including
records of meetings or notes that occurred in either their campaign
or Congressional offices. The Institute seeks the information to
discover any influence contributors have had in the political process
as part of its challenge to the laws increase in hard-money
limit from $1,000 to $2,000 per election and the additional increased
limits for candidates facing self-funded millionaires.
The lawmakersSenators
John McCain (R-AZ), Russell Feingold (D-WI), Jim Jeffords (I-VT)
and Olympia Snow (R-ME) and Representatives Christopher Shays (R-CT)
and Marty Meehan (D-MA)objected to the requests and sought
refuge under the Constitutions Speech or Debate Clause, which
shields legislators from answering questions about their legislative
activities in judicial or prosecutorial proceedings. While acknowledging
that the Speech or Debate Clause does not protect all of the materials,
these defendants nonetheless argued that the search would present
an unreasonable burden.
The three-judge
panel agreed, ruling that "the privilege shields several classes
of documents likely to be found in the... legislative offices."
In finding the request by the Institute "open ended and intrusive,"
the panel wrote that "the judiciary will refuse to sanction
a fishing expedition into a sea of legislative documents
even though a discovery request is broad enough to encompass nonprivileged
materials. ... For a court to authorize such open-ended discovery
in the face of a claim of privilege and in the absence of any information
to suggest the likely existence of nonprivileged information would
appear inconsistent with the comity that should exist among the
separate branches of the federal government."
In defending
the lawmakers resistance to turning over their records, their
attorney noted that the questions were out of line, especially because
the parties in all of the other suits had agreed to less intrusive
discovery procedures. Explain that to the Christian Coalition, the
Alabama Republican Executive Committee and numerous other organizations
that have fallen prey to the one-sided attack.
Hopefully the
focus will soon turn back to the solitary issue of this litigationthe
constitutionality of the law as written. The discovery stage of
the trial is set to end on September 30. The three-judge panel will
then conduct a "paper" trial, with oral arguments scheduled
for December 4, weeks after the effective date of the law. Assuming
a speedy opinion is issued, there may be enough time for the automatic
appeal (provided for under the law) to be considered this term by
the U.S. Supreme Court.
[Posted
September 20, 2002]
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