The Magazine

An Appearance of Corruption

The bogus research undergirding campaign finance reform.

May 26, 2003, Vol. 8, No. 36 • By DAVID TELL
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IT'S BEEN AN EPIC, "Bleak House"-worthy court case: 77 different plaintiffs suing 17 named defendants, thousands of pages of pleadings and motions and briefs, and more than 100,000 pages of additional expert-witness reports, deposition transcripts, and fact exhibits. On May 2, the hybrid judicial panel specially designated by Congress to hear the case--three judges, one from the D.C. Circuit Court and two from that circuit's district court--issued its much-delayed ruling. And that, too, all by itself, makes for a handsome library shelf: four separate opinions, plus associated orders, running to roughly 1,600 total pages. McConnell v. FEC, as the whole thing is known, is the omnibus constitutional challenge to the Bipartisan Campaign Reform Act of 2002 (BCRA)--the McCain-Feingold bill that President Bush signed last March. The stakes are high and go to the heart of the First Amendment: What are you allowed to say about candidates for federal office, and how much money can you spend saying it? The resulting blizzard of paper is now headed for the Supreme Court, on an uncertain schedule and with uncertain consequences for the way we run our presidential and congressional elections.

Contributing to the uncertainty is the fact that very few people, save for a handful of lawyers involved in the case, have more than the dimmest notion what exactly all these documents say. Just the final, May 2 batch of them, released late on a Friday afternoon, took hours to print out on a computer. By the following morning, a number of newspapers had performed heroic feats in order to give their readers reasonably coherent accounts of the McConnell court's decision. But even the best of those reports was necessarily sketchy, and follow-up analysis has been almost entirely forward-looking: Which of the parties might seek a stay of the ruling?

Which of them is best positioned to pursue an appeal? In all this talk about strategy, what's already happened, and why, has been set aside. Nobody on a deadline can read 100,000-plus pages of primary-source material on the intricacies of federal election law, after all. No sane person reads such stuff at all.

And a damn lucky thing that is, too, if you're anybody associated with New York University Law School's Brennan Center for Justice. For buried inside the stacks of deposition testimony and subpoenaed correspondence are some impressively ugly revelations about that activist outfit's involvement in the design, passage, and legal defense of our new campaign rules. In sum: The empirical evidence McCain-Feingold proponents have offered as the constitutional justification for a key provision of the bill, empirical evidence for which Brennan Center "research" is the source, appears to be fraudulent--deliberately faked.

CONVENTIONAL WISDOM now has it that the Supreme Court, when it does eventually hear McConnell, will be forced to review all of BCRA from scratch. The trial panel, as its May 2 opinions make plain, was riven by unusually bitter disagreements. Circuit Judge Karen LeCraft Henderson, a Bush-père appointee, decided that the new law is "unconstitutional in virtually all of its particulars." She was openly contemptuous of her colleagues--both for their failure to concur in that judgment and for the dithering pace of their deliberations. The main target of these complaints, District Judge Colleen Kollar-Kotelly, a Clinton appointee who voted to uphold most of BCRA, was openly contemptuous right back at Henderson, in a series of snarling footnotes.

The panel's third member, Bush-fils district court appointee Richard J. Leon, searching for safe passage through these fires, split his votes back and forth between the Henderson and Kollar-Kotelly positions. The practical effect of Leon's elaborate compromising was a peculiar, patchwork ruling that satisfied no one--striking down some sections of McCain-Feingold, upholding others, and guaranteeing multiple and conflicting appeals. (The parties to the suit include almost every high-profile player in American politics: the ACLU, the National Rifle Association, the Chamber of Commerce, and the AFL-CIO, among others.) Wielding extremely ambiguous Supreme Court precedents against those elements of the McCain-Feingold plan that most observers had figured would fare best under judicial review, Judge Leon and company wound up invalidating much of the law's ban on "soft money" fundraising and expenditures. At the same time, apparently unconcerned about a much clearer line of precedent generally hostile to government regulation of political speech, the court approved sweeping restrictions on interest-group "issue advocacy" ads--the part of the law widely thought vulnerable to First Amendment challenge.