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The most recent victim in the war challenging the Bipartisan Campaign Reform Act is the Christian Coalition



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 plaintiff—the party seeking redress—being 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 law’s 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 lawmakers—Senators 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 Constitution’s 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 litigation—the 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]