Yesterday, the NRA moved for a stay in the district court of the part of its
decision imposing the backup regulation of issue advocacy. Today, the BCRA
sponsors announced they will seek a stay of the entire district court decision,
which would have the effect of reinstating the BCRA as it existed before
the court's opinion. I have now received a Press Release from the James Madison
Center (it does not yet appear to be posted on the web) in which it says
that the Center will ask for an injunction preventing the BCRA's issue
advocacy rules (primary or backup) from going into effect.
The Center is representing the National Right to Life Committee. Like the
NRA, NRLC does not want the district court's rewriting of the issue advocacy
provision to go into effect. But it opposes the NRA's attempt to get the
30/60 day limit put back into effect pending appeal. It wants to return to
the pre-BCRA law in this area (i.e., no limits on and no disclosure for sham
issue advocacy, even if intended to elect or oppose a candidate for federal
office).
So what is the court to do? Despite the conventional wisdom that says that
the lower court is unlikely to stay its own ruling, there are some reasons
for thinking it might well do so.
On the merits, the stay should be granted. Without the stay, the BCRA is
in effect under the rules everyone more or less understands, backed up by
FEC implementing regulations. The issue advocacy question is put off, because
under the "primary" provision, the new rules would not kick in until 30 days
before the first primary.
Now think about each individual judge on the panel. Judge Kollar-Kotelly
may want a stay, because that implements most of the BCRA (her preference).
Judge Leon may not oppose a stay, given how critical people have been of
his ruling. Judge Henderson may oppose a stay, given that she believes the
BCRA is unconstitutional. Nonetheless, at least on the issue advocacy provisions,
the majority's interpretation of the BCRA may be even more unconstitutional.
The injunction claim of NRLC is more difficult. This would upset the rules
of engagement yet again. Nothing stopped NRLC from asking for the injunction
early on in the case (I was always suprised that some plaintiffs (though
not the Republican party, which has benefitted in fundraising under the new
higher hard money limits and no soft money) did not seek an injunction preventing
enforcement of the BCRA pending the outcome of litigation). This seems like
a long shot now.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com