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and Representatives Christopher Shays and Martin Meehan) asking that the campaign finance law be fully restored as originally enacted until the Supreme Court says otherwise.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.
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