But
by suspending their entire ruling, the judges also put back into
effect portions of McCain-Feingold they already declared unconstitutional.
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Three-Judge
Panel Blocks Its Own Campaign Finance Ruling,
Supreme Court Will Decide McCain-Feingold’s Fate
The
Bipartisan Campaign Reform Act (BCRA) is once again the “law of
the land” in its entirety thanks to the same federal court that
struck down and upheld portions of the law in a ruling that took
the three judges four separate opinions and 1575 pages to explain.
The stay issued Monday means that the decision of the three-judge
panel of the U.S. District Court for the District of Columbia will
be suspended until the Supreme Court rules on the constitutionality
of McCain-Feingold, likely to be as late as next fall or winter.
It also restores the full legal effect of the campaign finance law
as enacted, including even the portions declared unconstitutional
in the three judges’ opinions.
The
panel blocked implementation of its fragmented behemoth constitutional
ruling less than three weeks after deciding the challenges to BCRA
and, once again, the court was fiercely split — this time over how
much of its own ruling should be delayed pending Supreme Court review.
By
a 2-1 vote, the panel granted the motion of the government and intervenor
defendants (including the United States, the Federal Election Commission,
the Federal Communication Commission, Senators John McCain and Russell
Feingold, and Representatives Christopher Shays and Martin Meehan)
asking that the campaign finance law be fully restored as originally
enacted until the Supreme Court says otherwise. According to the
majority composed of Circuit Judge Karen LeCraft Henderson and District
Judge Colleen Kollar-Kotelly: “This Court’s desire to prevent the
litigants from facing potentially three different regulatory regimes
in a very short time span, and the Court’s recognition of the divisions
among the panel about the constitutionality of the challenged provisions
of BCRA, counsel[led] in favor of granting a stay of this case.”
But
by suspending their entire ruling, the judges also put back into
effect portions of McCain-Feingold they already declared unconstitutional.
As Judge Richard J. Leon wrote, dissenting from the decision to
stay the whole decision: “After months of painstaking analysis,
this Court found unconstitutional, in whole or in part, nine … provisions
of BCRA challenged by the plaintiffs. Four of these provisions
were struck down unanimously, and four were struck down in their
entirety. … Indeed, because ‘the loss of First Amendment freedom
for even minimal periods of time unquestionably constitutes irreparable
injury,’ … continuing such unconstitutional restrictions … is, in
my judgment, inconsistent with both the public interest and the
spirit of the First Amendment.”
The
broad stay has drawn new ire from many of the advocacy groups challenging
BCRA, including the Center for Individual Freedom, because these
plaintiffs were careful in asking for a stay to point out that the
court should not suspend its entire ruling and, thereby, re-impose
unconstitutional speech and association restrictions upon the public.
In fact, several organizations have now stated that they will appeal
not only the original decision on the merits of BCRA, but also the
three-judge panel’s decision to give new legal effect to sections
of the law declared unconstitutional.
- To read more
about the three-judge panel’s ruling on the constitutional challenges
to McCain-Feingold, click
here.
[Posted
May 22, 2003]
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