UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SENATOR MITCH McCONNELL, et al., Plaintiffs, Civ. No. 02-582 v. (CKK, KLH, RJL) FEDERAL ELECTION COMMISSION, et al., Defendants. NATIONAL RIFLE ASSOCIATION, et al., Plaintiffs, Civ. No. 02-581 v. (CKK, KLH, RJL) FEDERAL ELECTION COMMISSION, et al., Defendants. EMILY ECHOLS, et al., Plaintiffs, Civ. No. 02-633 v. (CKK, KLH, RJL) FEDERAL ELECTION COMMISSION, et al., Defendants. CHAMBER OF COMMERCE OF THE UNITED STATES, et al., Plaintiffs, Civ. No. 02-751 v. (CKK, KLH, RJL) FEDERAL ELECTION COMMISSION, et al., Defendants. NATIONAL ASSOCIATION OF BROADCASTERS, Plaintiff, Civ. No. 02-753 v. (CKK, KLH, RJL) FEDERAL ELECTION COMMISSION, et al., Defendants. AFL-CIO, et al., Plaintiffs, Civ. No. 02-754 (CKK, KLH, RJL) v. FEDERAL ELECTION COMMISSION, et al., Defendants. 2 CONGRESSMAN RON PAUL, et al., Plaintiffs, Civ. No. 02-781 v. (CKK, KLH, RJL) FEDERAL ELECTION COMMISSION, et al., Defendants. REPUBLICAN NATIONAL COMMITTEE, et al., Plaintiffs, Civ. No. 02-874 (CKK, KLH, RJL) v. FEDERAL ELECTION COMMISSION, Defendant. CALIFORNIA DEMOCRATIC PARTY, et al., Plaintiffs, Civ. No. 02-875 (CKK, KLH, RJL) v. FEDERAL ELECTION COMMISSION, et al., Defendants. 3 VICTORIA JACKSON GRAY ADAMS, et al., Plaintiffs, Civ. No. 02-877 (CKK, KLH, RJL) v. FEDERAL ELECTION COMMISSION, Defendant. BENNIE G. THOMPSON, et al., Plaintiffs, Civ. No. 02-881 v. (CKK, KLH, RJL) FEDERAL ELECTION COMMISSION, et al., Defendants. 4 “To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas.” —Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 478 (1897). KAREN LECRAFT HENDERSON, Circuit Judge, concurring in the judgment in part and dissenting in part: I believe the statute before us is 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.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). My colleagues’ per curiam opinion and their other opinions ignore the statute’s transparent infirmity and leave standing its most pernicious provisions, apparently on the ground that candidate- focused political speech inevitably “corrupts” the individuals to whom it refers. Their reasoning and conclusions treat a First Amendment with which I am not familiar. See Renne v. Geary, 501 U.S. 312, 349 (1991) (Marshall, J., dissenting) (“[T]he prospect that voters might be persuaded by . endorsements is not a corruption of the democratic political process; it is the democratic political process.” (emphasis in original)). Further, the opinions are similarly flawed in their dissection of the statute’s dense and interlocking provisions, upholding a portion here and striking down a fragment there until they have drafted legislation the Congress would never have enacted — all in the name of deference to that 5 body. See, e.g., Per Curiam Op. at Part I; Memo Op., RJL, at Parts I.A.2, I.A.3, I.B, II.C.1 1 To the extent this opinion overlaps with or is non-responsive to the other opinions, the disconnect is necessitated by the statute’s mandate that we “advance on the docket and . expedite to the greatest possible extent the disposition of the action[s].” BCRA § 403(a)(4); FECA § 310 note; 2 U.S.C. § 437h note. In light of that mandate, the panel held a status hearing on April 23, 2002—now over one year ago—at which the court and the parties discussed expedition and the significance of the statute’s delayed effective date. Compare Status Hearing Tr. at 23, 39, 82 (counsel for plaintiffs suggesting parties “ought to do our best” to “put[ ] this court in a position where, if it can, it can resolve everything by the effective date of the statute”), with id. at 58-61 (counsel for defendants disagreeing with “assumption . that section 403, the expedition section, requires some type of decision by this court by November 6th [of 2002]”); see also id. at 61 (court stating “I read [the statute] to mean that they want it to happen before [November 6th]” (Henderson, J.)). At that time, the parties differed somewhat as to the latest date on which the Supreme Court could receive the case and still decide it during the Court’s October 2002 Term. Compare, e.g., id. at 60, 69-70, 73-74 (counsel for government and intervenors proposing that “this court . resolve all the issues by early February” so that “the Supreme Court of the United States could in the ordinary course resolve this [case] by the end of the 2002 [T]erm”), with id. at 76, 82 (counsel for plaintiffs suggesting “the schedule that is being proposed by the government does place an extraordinary burden on the Supreme Court” and that “things should be done before November 6th if at all possible”); see also id. at 60 (court stating “[t]hat’s putting an awful lot on the Supreme Court to decide this if we don’t hear it until February. As far as I’m concerned, I’d rather put the burden somewhere [other than on the Supreme Court] [as] an inferior court.” (Henderson, J.)). All agreed, however, that the Supreme Court had to receive the case no later than the first week of February. See id. at 23, 39-40, 58, 60, 69-71, 73-74, 82. On April 24, 2002 the panel issued a scheduling order setting out a discovery and “paper trial” timetable that fixed an argument date of December 4, 2002. During the next eight months—a necessarily-compressed discovery and trial period—the parties conducted extensive discovery and submitted an “elephantine” record, Oral Arg. Tr. Vol. 1, Afternoon Session, at 152 (counsel for Senator McConnell), an impressive achievement due in no small measure to their extraordinary efforts to keep delay to a minimum. At the oral argument held on December 4 and 5, the parties again gave their estimates of the latest date on which an appeal could reach the Supreme Court in time for a final decision by June 30, 2003. Again there was consensus that the Court had to receive the case no later than early February. See Oral Arg. Tr. Vol. 1, Morning Session, at 19 (counsel for Senator McConnell stating “it 6 would be very helpful to the [C]ourt” if district court issued its judgment “as of the end of January or as soon into February as possible”); id., Afternoon Session, at 277-78 (counsel for intervenors stating Court could hear the case “in the regular course of briefing” if district court issued its judgment during “the third week in January”); see also id., Morning Session, at 19 (“I estimated actually less [time] than that, but, all right.” (Henderson, J.)). The panel’s subsequent delay in resolving these actions has not only defied the statute’s expedition mandate but, regrettably, has ill-served the strong public interest in election law clarity and stability. In my view, the delay could have been avoided—as it was avoided in Buckley v. Valeo—by the Congress’s lodging judicial review of constitutional questions in an en banc court of appeals instead of a three-judge district court. By contrast to BCRA section 403, which provides for judicial review “by a 3-judge court convened pursuant to section 2284 of title 28, United States Code,” BCRA § 403(a)(1); FECA § 310 note; 2 U.S.C. § 437h note, FECA’s judicial review provision provided—and still provides—that the Federal Election Commission, any national political party committee or any eligible voter “may institute such actions in the appropriate district court of the United States . as may be appropriate to construe the constitutionality of any provision of [FECA]” and that such court “immediately shall certify all questions of constitutionality of [FECA] to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc,” 2 U.S.C. § 437h. Pursuant to 2 U.S.C. § 437h, and noting a comment of the provision’s sponsor that “it is in the interest of everyone” to have “serious question[s] as to the constitutionality of this legislation . determined by the Supreme Court at the earliest possible time,” Buckley v. Valeo, 387 F. Supp. 135, 139 (D.D.C. 1975) (quoting 120 CONG. REC. S5707 (daily ed. April 10, 1974) (statement of Sen. Buckley)), remanded by Buckley v. Valeo, 519 F.2d 817 (D.C. Cir. 1975), the district court in Buckley certified 28 such questions to the en banc D.C. Circuit, see Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975). The D.C. Circuit, in turn, resolved the questions—which were no less novel than the ones the panel decides today—two months after oral argument. See Buckley, 519 F.2d at 821. A similarly swift resolution here would have yielded a decision by the first week of February. That the Buckley en banc panel consisted of eight members, not three—and that it did not have, as we have had, the benefit of a statutorily-prescribed eight-month stay in the effective date of the legislation—did not prevent it from issuing a decision more expeditiously than has this panel. Although the actions before us have produced a large (but probably unnecessary) record, see infra pages 64-65, we have decided the constitutional questions presented in the same manner as the Buckley panel did — after briefing and oral argument and in lieu of a full-blown trial.