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.
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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]
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