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Campaign Finance Reform in Limbo

Everyone remembers the McCain-Feingold campaign finance reform, and a few of you might remember that it's been put on hold while the courts mull over the inevitable Constitutional challenges. That's where the story ended for most people; everything else is "inside baseball" which rightfully bores people to tears. Sometimes, though, inside baseball is interesting.

In the last week, reports began appearing on NPR and the Washington Post that the three judge panel considering the McConnell v. FEC is deadlocked, not on the matter per se, but because they just can't work together. Judge Karen L. Henderson announced from the bench that the court would have a decision by mid-late January. This surprised and angered the other two judges, who are accustomed to taking their time after oral arguments. Judge Henderson is rumored to already be writing an opinion, while the other two are reviewing the 50,000 pages of evidence and 1,600 pages of briefs filed with them. These two judges and Henderson have barely talked at all in the last few months, a time when all three are supposed to be crafting a formal decision, which typically weighs in at 1,000 pages. Take a moment to consider how bad things must be in those chambers if the Washington Post is talking about it -- someone had to breach ethics rules to leak this information. Once you've fully considered the magnitude of this mess, imagine writing a 1,000 page book with two other people, and not talking to them. The court's decision could be delayed for months. But who cares?

Everyone cares, which is why this decision was supposed to be fast-tracked in the first place. If the panel does not deliver a timely decision, the Supreme Court will not be able to hand down a decision on the matter before the 2004 elections. Everyone agrees that this would be a bad thing, hopelessly complicating the election for all involved. The supporters of McCain-Feingold are especially interested, though, because they are afraid that the usually campaign-finance-reform-friendly Chief Justice Rehnquist will retire and be replaced with a campaign-finance-reform-hostile Bush appointee.

So the stakes are very high now, and everyone would like to see this law off the desk of the three federal judges. Some are suggesting that the McCain-Feingold supporters petition the Supreme Court for a mandamus, which would compel the panel to adhere to a timetable.

Others are less alarmist, and point out that the last major campaign finance reform case, Buckley v. Valeo, took eight months to reach to Supreme Court in 1976. The Supremes heard arguments in November, and had a decision by January. Buckley wasn't as complex as this case, though -- there are two dozen substantial provisions to consider.