- The Washington Times - Sunday, May 4, 2003

A federal panel yesterday struck down or rewrote most of the campaign finance reform law that Congress passed and President Bush signed into law last year.The three-judge panel overturned restrictions on how and when outside interest groups may run campaign advertisements against federal candidates but wrote new rules that some groups said are just as onerous. The court also overturned the part of the law that prohibits national political parties from raising so-called “soft money,” though it upheld the law’s ban on using the money to run television advertisements.The panel was created specifically to hear this case and create a record for the Supreme Court to use. One member, Circuit Judge Karen LeCraft Henderson, generally held the entire law was unconstitutional. U.S. District Judge Colleen Kollar-Kotelly found most of it acceptable. The third panelist, U.S. District Judge Richard J. Leon, sometimes agreed with Judge Henderson and other times with Judge Kollar-Kotelly, meaning that his opinion generally controlled the decision.Judge Henderson, who sits on the D.C. Circuit Court of Appeals, was appointed by Mr. Bush’s father, former President George Bush. Judge Leon was appointed by the current president, and Judge Kollar-Kotelly was appointed by President Clinton. “The bottom line is that this decision leaves the campaign-finance law stronger than it was prior to the passage of [the law], but not as strong as Congress intended,” said Larry Noble, executive director and general counsel of the Center for Responsive Politics, a group that supports the law.The ruling, effective immediately, is likely to control campaigning for at least part of the 2004 presidential primaries. The case will be directly appealed to the U.S. Supreme Court.Donations from corporations and unions that went to national and state political parties and committees was often used as soft money to pay for ads that praised or criticized a candidate without actually arguing that he or she should be elected or defeated. Those ads, and soft money itself, were both banned by the law.The court yesterday ruled that parties may collect soft money and use it for party-building activities, but not for advertisements.The two major political parties collected nearly $500 million in soft money in the 2002 election cycle, with Republicans holding about a $5 million edge over Democrats. Soft money accounted for more than half of all the money Democrats raised and was slightly less than 40 percent of what Republicans raised.Soft money refers to unlimited contributions to national political parties from groups such as corporations and labor unions. So-called “hard money” refers to limited contributions subject to strict reporting requirements and caps.The law had also banned outside interest groups from spending soft money on ads that mention a federal candidate within 60 days of a general election or 30 days of a primary. The court yesterday overturned that restriction but wrote a new restriction that allows a candidate’s name to be mentioned if it is for “genuine issue advocacy.”The new restriction was still being studied yesterday, but opponents of the law feared that it was even worse.”As it stands, this decision creates a favored, privileged category of speech for big media conglomerates and politicians above that of the American public,” said Wayne LaPierre, executive director of the National Rifle Association, which filed the first suit March 27, 2002, hours after Mr. Bush signed the bill into law.Both the law’s supporters and opponents said they have always known the eventual decision would be made by the Supreme Court.Chief opponent Sen. Mitch McConnell, Kentucky Republican, said he was “gratified” by the ruling, while former Rep. Bob Barr, Georgia Republican and another plaintiff, said, “Infringement on advocacy has been largely struck down.” The Republican National Committee called it a “positive first step.”The law’s chief sponsors — Sen. John McCain, Arizona Republican; Sen. Russell D. Feingold, Wisconsin Democrat; Rep. Christopher Shays, Connecticut Republican; and Rep. Martin T. Meehan, Massachusetts Democrat — issued a joint statement saying the ruling “could create serious loopholes that undermine the law’s effectiveness.”But they took heart in the appeal to the Supreme Court, saying they believe that the high court’s recent decisions have been favorable to restrictions.”The Supreme Court’s recent decisions … indicate that the court is sensitive to the real world effects of large contributions on our political system,” the four men said.The court produced a 171-page joint opinion, and each judge wrote an individual opinion. Judge Henderson’s opinion runs 345 pages; Judge Leon’s, 347 pages; and Judge Kollar-Kotelly’s, 706 pages.In her opinion, Judge Henderson wrote that she found the law “unconstitutional in virtually all of its particulars.”“It breaks faith with the fundamental principle — understood by our nation’s founding generation, inscribed in the First Amendment and repeatedly reaffirmed by the United States Supreme Court — that ‘debate on public issues should be uninhibited, robust, and wide-open,’ ” she wrote.Judge Kollar-Kotelly said that before the law passed, the important parts of the campaign-finance system were being “decimated” by abuse. “The constitutional rights of those who participate in the election of federal officeholders are unquestionably of the highest order, but so too is the sanctity of the process that produces those public officials who participate in the governance of our democratic society,” she wrote.All three judges did agree on some points. They overturned the law’s ban on persons under 18 years of age contributing to campaigns, and they decided they should not rule on the part of the bill that increases hard money contribution limits from $2,000 per candidate per campaign cycle to $4,000.

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