by Phil Kent, SLF President

As appeared in The Washington Times, May 07, 2003

   
   As U.S. Supreme Court Justice Sandra Day O'Connor opined in the blockbuster 1992 decision, Planned Parenthood v. Casey, "Liberty finds no refuge in a jurisprudence of doubt." In no case can this principle be more clearly seen than in last week's three-judge panel decision on the constitutional challenge against the McCain-Feingold Bipartisan Campaign Reform Act (BCRA). As it stands now, in stark contrast to first-blush media accounts declaring the law "overturned," the special D.C. circuit court opinion leaves in place a dangerous regime with unclear parameters for the exercise of political speech.

         Mainstream media accounts, overwhelmingly uniform and sadly wrong, incorrectly attribute a clear statement of unconstitutionality to provisions of the BCRA that govern so-called "electioneering communications" by corporations, unions and incorporated issue advocacy organizations. The same applies to so-called "coordination" of expenditures by political parties and groups. But the panel's decision raises more questions in these areas than it answers.

         Again, sadly, any opportunity this court had to influence the overall outcome of this case was lost in the chaotic 1,600-plus page opinion — the longest, by some accounts, in U.S. federal court history. In essence, the U.S. Supreme Court will this fall undertake a de novo review of the case because the current opinion fails to definitively address the most basic questions: Who can speak out on political matters, with what money, and with whom can people associate to create and disseminate such speech?

         As co-counsel and plaintiff in this case, we at the Southeastern Legal Foundation will be hard-pressed to provide our clients with definitive answers to these key questions. In fact, in light of the disparate decision now on direct appeal to the U.S. Supreme Court, the safe counsel is to proceed with caution — any misstep related to the raising and spending of money by political parties, or the collection and dissemination of messages by corporations and organizations could easily subject the "wrongdoer" to serious criminal sanctions, including prison time and fines.

         The potential criminal aspect of the BCRA underscores the two divergent world views that inform the case. From one perspective — shared by the majority of mainstream print media, Sens. John McCain and Russell Feingold and the liberal Brennan Center — this case is about the "appearance of corruption" by politicians, which requires government regulation.

         The second world view, shared by a myriad of plaintiffs ranging from the American Civil Liberties Union to the National Rifle Association and the millions of Americans they/we represent, is that the issue involves [ital]speech and people [ital], protected by constitutional rights to express opinions and to associate with each other. Despite D.C. appellate court Judge Karen LeCraft Henderson's opinion that virtually the entire BCRA is unconstitutional, the three-judge panel did nothing to distinguish between politicians and corruption on the one hand, and free speech by people on the other. This will be the purview of the high court.

         Even The New York Times, whose editorial page has been an arch-supporter of the BCRA and its tentacled sanctions limiting who, when and how people can speak, admits that last week's decision is relatively meaningless. Linda Greenhouse, the Times senior legal correspondent, grudgingly surmised, "The panel . . . failed to . . . produce a unified and coherent set of factual findings and legal conclusions."

         President George W. Bush, who signed the BCRA last year, expressed reservations at the time about "certain provisions" of the new law. Nevertheless, he failed to provide what former President Ronald Reagan and his innovative Attorney General, Edwin Meese III, developed as "signing statements," which enumerated specific constitutional concerns raised by the enactment of new laws. Such statements served as an effective guide for federal courts that reviewed legal challenges to new laws, and underscored the vital role that the executive branch should play in interpreting the Constitution. No such statements exist for BCRA.

         Before the omnibus constitutional challenge was filed, a McConnell co-counsel, former Independent Counsel Kenneth Starr, described the BCRA as the most pernicious free speech gag since the Alien & Sedition Acts of the late 1700s. Although downplayed by many in the mainstream media, the analogy is nevertheless accurate. 

         Before the lawsuit, the BCRA was an untested animal; now prodded by a first-round court, the BCRA is a wounded, more dangerous animal. Where there is uncertainty about the law, there can be little security and even less liberty. After this first, indecisive battle of the war for political speech, the parties are left to prepare for D-Day, which will come during the October term of the U.S. Supreme Court.

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