- The Washington Times - Monday, May 19, 2003

The McCain-Feingold campaign-finance act is once again the law of the land after the special court that several weeks ago ruled much of the law unconstitutional blocked its ruling from taking effect yesterday, pending an appeal to the Supreme Court.

The stay is a blow to political parties and groups such as the Republican National Committee, which had hoped to raise soft money for use in state elections in November.

But political-advocacy groups hailed the stay, which allows them to go ahead with television advertisements they had planned under McCain-Feingold rules but put on hold because of the initial court ruling.

In the immediate term, the stay means that groups such as the National Rifle Association can now run advertisements asking lawmakers to support a bill protecting gun manufacturers from some lawsuits, a matter the gun rights group had put on hold after the court’s May 2 ruling.

“The NRA got what it wanted, and it’s good as far as it goes,” said Cleta Mitchell, an attorney for the NRA. She said that because of the stay, “the NRA, I think, goes to the production studio, creates some ads and puts them on the air, and is, for at least a time, able to engage in citizen advocacy.”

The McCain-Feingold law, named after chief Senate sponsors John McCain, Arizona Republican, and Russell D. Feingold, Wisconsin Democrat, prohibits national political parties from raising or spending soft money, the uncapped donations used for organizational work and to pay for issue ads.

The law also prohibited interest groups from using soft money to run ads referring to a federal candidate within 60 days of a general election and within 30 days of a primary.

The special court, a three-judge federal panel formed to hear the case and compile a record for a Supreme Court appeal, ruled May 2 that both bans were partially unconstitutional.

In a 2-1 decision, the court ruled that parties can raise soft money and spend it for party building, but not for issue ads.

In a separate part of the decision, the panel ruled that although interest groups may run issue ads at any time, at no time can any such ad attack or defend a federal candidate.

The panel yesterday agreed with the bill’s sponsors and with the Federal Election Commission that the ruling be stayed, saying it would be unfair to have different sets of rules within the same election cycle.

Until the stay yesterday, there was the possibility of parties and candidates having to operate under three sets of rules — McCain-Feingold, the court’s new rules, and whatever passes muster with the U.S. Supreme Court.

Most parties were happy with the stay, as the law’s backers as well as opponents had objected to the decision.

But several plaintiffs who wanted the entire law overturned said the fact that a stay is considered a victory proves that the entire campaign-finance system has become too convoluted under McCain-Feingold and the court rulings.

“When Congress writes a statute that purports to say what you can say, when you can say it, and regulates citizen speech on candidates, this is what happens,” Ms. Mitchell said. “It’s why the First Amendment says ‘Congress shall make no law’ on the subject.”

Judge Richard J. Leon, one of the three judges on the special court panel, also objected to staying parts of the ruling.

“At least two members of this court in each instance found that the unconstitutional section of the statute … unjustifiably infringed upon the constitutional rights of one or more of the various parties impacted by the [law],” he wrote in a partial dissent yesterday.

In particular, regarding the part that ruled national political parties could once again raise soft money and spend it on party-building activities that don’t directly help a single candidate, Judge Leon said reinstating the McCain-Feingold restrictions made no sense.

In the complicated 1,700-page May 2 ruling, Circuit Court Judge Karen LeCraft Henderson had leaned toward declaring most of the law unconstitutional, while District Judge Colleen Kollar-Kotelly had found most of the law constitutional.

That split left Judge Leon as the critical swing vote, and he ended up writing the new rules about advocacy-group advertising that have irked political activists.

A number of notices of appeal have been filed with the Supreme Court, but it’s not clear when the nine justices will be able to decide the case, meaning that, for now, McCain-Feingold rules will govern.

The decision to stay their ruling is a blow, though, for those groups such as the RNC that had wanted the new soft-money rules in place for the state elections.

A spokesman said yesterday that the RNC had no comment except that its lawyers were reviewing the decision.

One plaintiff, James Bopp Jr., general counsel at the James Madison Center for Free Speech, said he plans to appeal.

“We expect to appeal, as soon as I get over my astonishment,” said Mr. Bopp, who is working on behalf of a number of clients, including the National Right to Life Committee.

Mr. Bopp had asked the court to issue an injunction of the McCain-Feingold law, which would return the governing campaign-finance rules back to where they had been through the 2002 election cycle.

He said he was amazed that the special court, after finding May 2 that McCain-Feingold violated basic free-speech rights, would now reinstate the law, pending a Supreme Court decision.

Other political-interest groups that have fought McCain-Feingold and the court’s decision include the American Civil Liberties Union and the AFL-CIO.

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