Let’s get on with it (Court review of McCain-Feingold)

We have no idea how the three-judge panel that’s reviewing the McCain-Feingold campaign law will rule.

But we do know that a failure quickly to break the legal logjam that’s gripping that panel augurs dire consequences for the 2004 elections.

The undue delay may have already doomed chances for the U.S. Supreme Court to consider last year’s reform legislation before Congress recesses for the summer.

The longer it takes for the lower court to render its verdict, the harder it is going to be to have clear rules firmly in place next year when the nation next needs to elect a president and a new Congress.

Should further delays persist in what the high tribunal refers to as “the court below,” the justices will probably be unable to issue a final ruling until well into their fall term.

Such a failure, in turn, could disrupt the foreshortened presidential primary process, which will be in full swing later this year and throw a legal monkey (or money) wrench into the 2004 presidential election.

Recent media reports suggest that Judge Karen LeCraft Henderson of the U.S. Court of Appeals for the D.C. Circuit has encountered major differences with the two other jurists on the review panel, U.S. District Court Judges Colleen Kollar-Kotelly and Richard Leon, over how to proceed.

Ironies abound. In early December of 2002, when the panel heard oral arguments on the case, Henderson voiced astonishment when Kenneth Starr, representing Sen. Mitch McConnell (R-Ky.) and others who are challenging the defendants, said it would be helpful if the court were able to issue its ruling by “the end of January or early February.”

Henderson promptly shot back that, in her own view, the panel would need to issue their ruling even earlier than that. She thereupon reportedly set to work drafting an opinion. But her judicial colleagues apparently beat to a different drummer.

Without reaching to the merits of the case, Judge Henderson holds the high ground. She recognizes that legislation capable of altering federal elective outcomes must be thoroughly reviewed by the highest court in the land. While the top justices will no doubt weigh what “the court below” has had to say, (when, that is, they ever get around to saying it), they will also need to frame their own opinions. It will be their ruling that governs the dictates of the Federal Election Commission (FEC) and serves as the law of the land.

Moreover, a divided lower court will hold less clout than a unanimous opinion. And even if Henderson writes a dissent, that argument could hold lots of weight in light of her senior status.

Already some legal scholars have suggested that McConnell or the FEC file a motion with the Supreme Court directing the three-judge panel to finish its work by a date certain. Such an order, known in legal circles as a mandamus, would be in effect a vote of no confidence in the ability of the district court to act in a timely way. Yet the goal all along has been to pursue an expedited process that would lead to an early finding by the Supreme Court. We believe that’s still a worthy goal. Given the voluminous factual record in the case, early action is preferable to a polished 25,000-word opinion from a potentially divided lower court.

The writer for The Hill clearly doesn't understand how to read judicial tea leaves. I do.
The quick route for the special three-judge trial court (which was specified in the law) would have been a back-of-the-envelope ten page decision that boiled down to the following sentence: "While this court has serious doubts about the constitutionality of the Campaign Finance Reform Act, it nonetheless finds it constitutional."
If the three-judge court was going to do that, it would have happened two months ago. Therefore, the delay means that that court is going to find significant portions of the law unconstitutional, and is crafting a decision saying why, which it believes may stand up under Supreme Court review.
I feel very confident this will be the result. Then, the supporters of CFR will be put in the position of asking for a stay of that decision, from either the lower court or the Supreme Court, prior to full-dress consideration by the Supreme Court. I expect that to be denied.
So the roles will be reversed when this case gets into the Supreme Court. The supporters of the law will be on offense, and the opponents of the law will be on defense. Speaking as an opponent of the CFR law, that is always the better posture to have in the Supreme Court.
So, I expect major portions of this law to be knocked out for the 2004 election. And, by a narrow decision, I expect the Supreme Court to keep it that way, after full briefing and argument. And I will file a brief in the Supreme Court urging exactly that result.

Congressman Billybob

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