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As a result, the panel’s decision did really nothing to answer the serious constitutional questions posed by the most sweeping change in election law in nearly three decades.

The Bijudicial Campaign Reform Act of 2003

Late last Friday, a specially appointed panel of the U.S. District Court for the District of Columbia issued its ruling in the consolidated constitutional challenges brought against the Bipartisan Campaign Reform Act of 2002, popularly known as McCain-Feingold.  The decision consisted of four opinions issued by three judges plus a final judgment order, and ran, all told, 1,575 pages long, with an additional 63 pages tacked on to deal with matters of confidential evidence and documents in the record.  In fact, the decision was so fractured and complicated that the judges attempted to clarify their rulings in a four-page section-by-section chart that mapped out how each judge voted on each provision being challenged.  No matter, in the words of Linda Greenhouse, the long-time Supreme Court reporter for The New York Times: “The chart itself was nearly incomprehensible.”

The instantaneous impression left by what can most charitably be called the panel’s volume of rulings was that two of the judges on the panel — Colleen Kollar-Kotelly and Richard J. Leon, both of the U.S. District Court for the District of Columbia — had effectively enacted their own Bijudicial Campaign Reform Act of 2003 by selectively upholding and striking provisions, sections, and even clauses of the “suggestions” Congress had passed as the Bipartisan Campaign Reform Act of 2002.  The panel’s presiding judge, Karen LeCraft Henderson of the U.S. Court of Appeals for the D.C. Circuit, reached that conclusion after wrestling with the cases for more than a year.  Commenting on the opinions of her colleagues, Judge Henderson wrote that their opinions were “flawed in their dissection of the statute’s dense and interlocking provisions, upholding a portion here and striking down a fragment there until they have drafted legislation Congress would have never enacted — all in the name of deference to that body.”

As a result, the panel’s decision did really nothing to answer the serious constitutional questions posed by the most sweeping change in election law in nearly three decades.  Instead, the decision only serves to raise yet another fundamental question of constitutional dimensions: Can a court effectively rewrite law enacted by the political branches of government by leaving constitutionally intact a few sections of a much larger legal scheme that was only able to be passed as one complete whole?

Of course, the answer to such a question over the proper separation of powers in our constitutional republic has to be an emphatic “No.” And for her part, Judge Henderson noted her disagreement with the other judges on the panel.  “I believe the statute before us is unconstitutional in virtually all of its particulars,” she wrote.

Nonetheless, Judge Henderson’s single outnumbered vote left the “reasoning and conclusions” of the other two judges as the law of the land until the Supreme Court intervenes.  And there lies the most immediate concern faced by numerous advocacy organizations across the country, including the Center for Individual Freedom whose primary mission is “to protect and defend individual freedoms and individual rights guaranteed by the U.S. Constitution.”

According to the “reasoning and conclusions” of Judges Kollar-Kotelly and Leon, the First Amendment simply does not protect corporations — even non-profit advocacy groups like the Center — when they wish speak on matters of the highest public importance, such as those concerning our most cherished constitutionally protected rights and freedoms.  Under their decision, the Center cannot use funds from its general treasury to fulfill its mission by running issue advertisements on radio or television if those ads could be seen as either “promot[ing] or support[ing] … or attack[ing] or oppos[ing] a candidate for [federal] office (regardless of whether the [ad] expressly advocates a vote for or against [the] candidate).”  Apparently, such speech corrupts rather than informs our political process.

As stated by Judge Henderson, such “reasoning and conclusions treat a First Amendment with which I am not familiar.”  But thanks to the activism of two unelected judges and their newly “enacted” Bijudicial Campaign Reform Act of 2003, the Center will have to wait for nine higher authorities to restore its First Amendment free speech rights.

[Posted May 8, 2003]