Commentary: Sometimes reform is illegal

By JOHN ARMOR  |  May 9, 2003 at 6:10 AM
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HIGHLANDS, N.C., May 9 (UPI) -- The special three-judge trial court considering the Bipartisan Campaign Reform Act ruled last week. By varying votes of 3-0 and 2-1 it determined that substantial portions of BCRA, sometimes known by the names of its two chief sponsors, Sens. John McCain, R-Ariz., and Russell Feingold, D-Wis., violate the U.S. Constitution.

When this law was passed, much of the mainstream media hailed it as a "Good Thing for America." The trial court has now ruled that it is largely an affront to the Constitution. The media did not mention, at the time, its conflict of interest -- that the law would have shut out many independent voices from the political process at the exact time they most wanted to speak out, 30 days before primary elections and 60 days before general elections. That provision, which was struck down, would have left the press as the primary commentator on elections, other than the parties and candidates themselves.

This is not the first time Congress has deliberately passed, and a president deliberately signed, a law that was obviously unconstitutional. Unfortunately, it will not be the last. Both Congresses and presidents have a tendency to do that, when public opinion and pressure from the press to "do something" become too great. Laws passed under such circumstances usually contain the word "reform" in their titles.

The trial court decision consisted of seven documents with a total of more than 1,700 pages, so it is understandable that the early press reports did not get the story exactly right. Below is a brief description of the parts of the reform act which were declared unconstitutional. As a matter of full revelation, this writer will file a brief in the U.S. Supreme Court against this law, when this case is (almost certainly) accepted by that court for review.

This decision is worse for the supporters of campaign "reform" than most reporters and commentators have yet realized.

The court issued a per curiam, or unsigned, opinion rather than a regular opinion, because even on the provisions that all three judges agreed were unconstitutional, they did not agree as to why they were struck down. On pages 12-15 of the per curiam is a chart showing how each judge voted on each provision of the law. Of the 20 sections of the law considered, five of them are determined nonjudiciable, meaning the court did not rule on them.

For various reasons including lack of standing of the particular plaintiffs, lack of facts sufficient to rule on, and lack of court jurisdiction (the court was not empowered to rule on regulations issued by the Federal Election Commission under the act, as opposed to the act itself), this court did not rule on these provisions, though ALL of them are open to later challenge in future cases.

Of the 11 sections the court found to be constitutional in whole or only in part, most remain open to later litigation. The court was usually ruling whether provisions were "facially constitutional," not "as applied." That means only conditional legality, subject to later attack as being unconstitutional when applied in the real world. The ultimate effect is that BCRA is like the case of Jarndyce v. Jarndyce, described by Charles Dickens, which continued on for generations providing permanent income for the lawyers involved. That is the fate of this law, even if the Supreme Court accepts the trial court's decision exactly as written.

Here are the parts of the law which the panel of judges ruled as unconstitutional by a unanimous 3-0 vote:

All three judges ruled that the requirement of advance disclosure concerning independent issue ads is illegal. Section 201 (Sections of the law are cited for the benefit of readers wanting to read the law itself).

All ruled that the attempt of the law to force certain "independent expenditures" into the regulated category of "coordinated expenditures" was illegal.

All ruled that the prohibition against contributions by minors was illegal. Section 318.

All ruled that required disclosure of the records of radio and television broadcasting was illegal. Section 3318.

Here are the parts of the law which the panel ruled unconstitutional by a 2-1 vote:

Two judges ruled that "soft money," meaning unlimited amounts of money not used directly in federal campaigns, could be prohibited in "issue advertising," but struck down the law's prohibition of such money for "party-building" activities, including get-out-the-vote drives, buildings, equipment, etc. Section 323(a).

Two ruled that prohibiting all cooperative activities of state political parties in support of their respective national parties, was unconstitutional. Section 323(b).

Two ruled that the definitions of "federal election activity" in the law was unconstitutionally broad and reached activities protected by the First Amendment. Section 301(20).

Two ruled against restrictions on political activity by tax-exempt organizations. Section 323(d).

Two ruled that the definition of "electioneering communications" was illegally broad. Section 201.

Two ruled that certain prohibitions against political activity by non-profit organizations are illegal. Section 204.

In terms of the largest impact on the largest number of Americans as we participate in national elections, here are the most important effects of these decisions: All of the 25,000 or so national organizations for all purposes, from Actuaries to Zoologists, will remain free to speak as they choose in broadcast advertising giving their opinions concerning the policy positions taken by incumbent politicians. Most Americans belong to one or more of these groups. AARP, which speaks for retired people, and AAA, which speaks for auto drivers, both have more than 30 million members, for example.

Both corporations and unions, which between them represent the interests of most Americans either as shareholders or employees, remain free to contribute to party building activities of the party of their choice (though the prohibition against such contributions for "issue ads" remains standing).

With minor restrictions, the ability of the national political parties to cooperate with their state parties for the benefit of electing their respective slates of candidates remains standing against the attempted barriers of the new law. Since about 70 percent of all Americans identify themselves as either Republicans or Democrats, this provision of the law would also have affected most Americans as potential voters.

Normally, a "split decision" of a panel, meaning a 2-1 vote, indicates a greater opening for the Supreme Court to reverse the lower court decision. Such reversals usually contain a sentence like this, "We find the conclusions of the dissent in the lower court more persuasive." That does not apply here. The one judge who dissented on most points, Judge Henderson, thought the entire law from beginning to end was unconstitutional, so her position was even stronger against the proponents of this law than the majority of the panel.

What happens now? The trial court has already issued its injunction against all parts of BCRA that it found unconstitutional. Supporters of the law can ask the trial court to stay the effect of its decision pending review by the Supreme Court. That will be denied.

Then, the supporters can ask the Supreme Court for a stay pending its consideration. A key standard for obtaining such relief is that the petitioners seeking it are "highly likely to prevail on appeal." All three judges in the trial court based their separate decisions on the key Supreme Court case of Buckley v. Valeo, 1976, and on a dozen Supreme Court cases that followed and confirmed that one. Unless the Supreme Court is willing to revisit and reverse several of its own prior decision, the supporters of the law have no realistic chance of prevailing on appeal. So that court will also deny any relief pending review.

The four different opinions in this case run to some 1,700 pages; the record from the trial is in excess of 100,000 pages. The Supreme Court will not be able to decide this case until after its new term begins next October. The likely outcome is another decision like the court's own 300-plus page decision in the Buckley case, the only decision in its history to occupy an entire volume of the U.S. Reports.

The most likely outcome is the Supreme Court will, in a divided decision, uphold all of the findings that certain provisions are unconstitutional. Less likely, the court will uphold those findings and find additional provisions unconstitutional. Less likely than that, the court will find that so many provisions are unconstitutional that it strikes the entire law, but stays its final Order for 90 days, giving Congress an opportunity to rewrite the law to comport with the Constitution. (That is exactly what the court did, in its Buckley decision).

By a wide margin, the least likely outcome is that the court will reverse the trial court, necessarily reverse several of its own decisions, and conclude that the entire BCRA, "McCain-Feingold" campaign finance reform act, is constitutional.

The nearly certain result is that BCRA as written by Congress three years ago, will NOT apply to the elections of 2004. The provisions now ruled unconstitutional will remain so, and perhaps more provisions will also be struck before that election.

When the question of acceptance and ratification of the U.S. Constitution was before the Congress in 1787, Congressman "Light Horse" Harry Lee of Virginia rose to object that the worst of the wrong decisions made by Congress were reached for the claimed purpose of serving "the good of the people" (he used the Latin, salus populi). The passage of this particular reform law, and now its fate in court when measured against that Constitution, is yet another example of that truth.

Good intentions do not necessarily lead to good law. And good intentions are certainly no guarantee that the resulting law is consistent with the Constitution, especially the First Amendment. So said the 84 original plaintiffs in this case that consolidated 11 different suits. So said the three judges of the trial court.

So, in due time, will say a solid majority of the justices of the Supreme Court (at least six of them, perhaps all nine of them with respect to certain parts of this law). In short, just because something is widely labeled as "reform" does not make it legal.


(About the Author: John Armor's brief in this case in the Supreme Court will be his 17th. Almost all of those have involved the First Amendment. Seven have specifically involved federal election law).

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