Free Speech About Politicians Case Heard by Special Panel

By Dave Andrusko

Washington, D.C. (December 5) - - In a courtroom packed with high-powered legal talent, passion, and reporters, a legal showdown that will probably culminate in a decision next year by the Supreme Court began before a special three-judge panel here in the nation's capital.

Judges Karen Henderson, Richard Leon, and Colleen Kollar-Kotelly heard diametrically opposed interpretations of the intent and likely impact of the Bipartisan Campaign Reform Act of 2002 (BCRA), more commonly known as McCain-Feingold, from a star-studded array of former government officials and legal scholars. On the line for pro-lifers is a blatant attempt to stifle their voice in the public square, as well as that of many other grassroots public advocacy groups as well.

Phil Kent, who serves as co-counsel and plaintiff in the omnibus lawsuit filed by Sen. Mitch McConnell (R-Ky.), wrote in the Washington Times that McConnell v. FEC is about "nothing less than the future of political debate and the ability of American citizens to criticize the government."

While many provisions of BCRA have aroused intense opposition, pro-life resistance is focused on two in particular. First, the bill prohibits incorporated groups and unions from purchasing TV or radio ads that refer to a specific member of Congress or other "candidate" for 30 days before a primary, or 60 days before the general election.

While federal political action committees (PACs) would be allowed to purchase such ads, PACs operate under a host of restrictions, including severe limitations on their fundraising. The ban is so complete it would apply even to ads that merely seek to alert citizens to upcoming votes in Congress.

Second, the law also has an expansive definition of what constitutes illegal "coordination" between a citizen group such as NRLC or its affiliates, and a member of Congress. It is so broad that it places incumbent lawmakers, advocacy groups, and unions at great legal risk for engaging in cooperative or parallel activities in pursuit of common legislative goals­or, for that matter, even merely transmitting information about an incumbent lawmaker's position on public policy issues.

The bill is not without its supporters, of course, but what is interesting is the breadth of the opposition. It ranges from the Libertarian National Committee Party, the United States Chamber of Commerce, National Right to Life, and the National Rifle Association to the California Democratic Party and the American Civil Liberties Union (ACLU).

The new law "makes it a crime for us to broadcast an ad critical of the President of the United States during an election year," Joel M. Gora, a lawyer for the ACLU, told the court. "It's hard to imagine a more blatant violation of the First Amendment."

Former Solicitor General and Independent Counsel Kenneth Starr told the panel that Congress exceeded its authority by enacting a law so sweeping that it created a "dragnet of regulation" that violates free speech and guarantees of free association.

There is a special provision in BCRA that allows the case to be immediately appealed to the Supreme Court under an expedited schedule. According to the New York Times, Judge Henderson asked Kenneth Starr, who has argued many cases before the Supreme Court, to suggest a "timetable" that would allow the case to be resolved before the 2004 elections.

Starr told the panel it should decide the case by the end of January 2003 so the High Court would have a reasonable chance of deciding the case this term.

"This case is about the vital role that citizen groups, such as NRLC, play in our republic, and whether citizens of ordinary means will continue to be able to amplify their voices on vital issues by banding together,"said NRLCGeneral Counsel James Bopp, Jr.