Court Delays Campaign Law Ruling and NRA Begins Ads
June 1, 2003

by Joseph P. Tartaro
Executive Editor

The campaign finance reform measure sponsored by Sens. John McCain (R-AZ) and Russ Feingold (D-WI) was a complex measure when it passed through Congress and was signed into law by President Bush in 2001. It was immediately challenged in federal district court by an unusual assortment of individuals and interest groups that seldom agree with each other on other matters, but found unity in seeking to have the law declared unconstitutional.

The National Rifle Association (NRA) appears to have been the first of many organizations to file their challenge to the McCain-Feingold law, but deferred for court captioning purposes to Sen. Mitch McConnell (R-KY) who filed his challenge hours later. McConnell, the NRA, the American Civil Liberties Union (ACLU), the National Right to Life Committee (NRTC), major labor unions and a host of other interests all sought justice for what they considered—in whole or in part—the injustice of the campaign law.

While polls indicated that the American public—unhappy with many of the practices and influences involved in US election campaigns—supported the reform measure, they didn’t fully understand all of its implications.

On May 2, a three-judge panel of the US District Court in Washington, DC, issued a mammoth ruling that some praised and others condemned. The almost 1,700-page court ruling striking down parts of McCain-Feingold, upholding some parts and rewriting still others is believed to be the longest ever issued by that court. It may also be the most confusing, and it immediately set-off multiple appeals to the US Supreme Court by McConnell, the NRA, et al.

Confusion
Reports of the district court’s decision, including the one in the May 20 issue of Gun Week, may have created the impression that the ruling was good for gunowner groups, but the issue is more complex than that. Money issues aside, there are problems with the district court’s handling of the ban on ads designed to inform the voting public.

The NRA went a step further on May 12 by asking the Supreme Court to block that part of the lower court ruling that rewrote the rules guiding outside interest groups running issue ads.

The NRA’s request was the high court’s first chance to rule on the special circuit court panel’s decision that invalidated or rewrote much of the campaign finance regulations.

The three-judge panel changed a lot of the rules regarding campaign contributions and political speech.

Pending the Supreme Court appeal rulings, the NRA asked Chief Justice William H. Rehnquist, who oversees the federal District Court for the District of Columbia, to stay the new rules the court wrote concerning when and how interest groups can run issue and candidate advertisements.

Faced with a possible filibuster of federal legislation to bar frivolous suits against gun companies that are designed to drive them out of business and dry up the availability of guns to consumers, the NRA needed an immediate answer in order to know whether it can begin to run advertisements on gun issues.

Rehnquist’s answer was negative. On May 13 he refused the NRA’s request for an immediate stay of the lower court’s order without commenting on the merits of the appeals themselves, which probably won’t be heard until the Fall.

“We are injured every day this is not overturned and deprived of our constitutional freedoms as citizens and as an association,” NRA Executive Vice President Wayne LaPierre said of the part of the court’s ruling on the law he wants blocked.

The NRA told the courts that without a stay, it would be a violation of the law for it to run an ad it wants to air immediately in some states relating to pending legislation blocking the gun lawsuits.

The NRA and others had also appealed to the lower court to stay their decision pending the appeal, and that court granted the motion on May 19.

NRA Issue Ads
The original law prohibited ads mentioning a federal candidate 60 days before a general election and 30 days before a primary, but the district court’s ruling, which was to take effect immediately, changed that to ban ads that attack or defend a federal official at any time.

Opponents of the law concede they find themselves in the unique position of defending the original law, because they say the judges’ decision could be even worse.

“It’s a bizarre situation where people believe that one unconstitutional provision is the lesser of two evils,” said Jan W. Baran, an attorney for several of the plaintiffs in the case. “Actually, I think both evils are evil, and both should be enjoined.”

On May 20, Associated Press reported that the NRA—freed for the moment from restrictions on political ads—says it will air an advertisement urging Senate Minority Leader Tom Daschle (D-SD) to support legislation that prohibits frivolous lawsuits against the firearms industry.

The NRA said it would run the radio ad as early as May 21.

The NRA said the stay will allow it to run ads such as the one planned in South Dakota. The ad urges Daschle to vote for the gun liability legislation and criticizes Sen. Chuck Schumer (D-NY) for opposing it. Both Daschle and Schumer are up for re-election next year.

The NRA said on May 19 that it planned to air a similar ad in Arizona urging McCain to back the legislation and criticizing Schumer’s position. However, on May 20, an NRA spokesman said that the group has decided against running the Arizona ad but may run ads targeting other members of Congress on the issue.

Connecticut Case
The Connecticut Supreme Court has decided to hear the case of a taxi driver who was cleared of a gun possession charge after shooting a scissors-wielding passenger to death two years ago.

New Haven Superior Court Judge Lubbie Harper last year dropped a charge of carrying a pistol without a permit against New Haven cabbie John Lutters. Harper ruled that the cab was Lutters’ place of business and thereby made him exempt from the pistol permit requirement.

Prosecutors appealed the ruling, saying the decision would set a bad precedent that might allow anyone from ice cream vendors to traveling salesmen to carry weapons in their vehicles without permits.

State law requires gunowners who want to carry their firearm in public to obtain a special license, but that law does not extend to people who want to keep one in their place of business, so long as they have a “proprietary interest.”

The high court, which decided to take the case from the Appellate Court in early May, is expected to hear the case in its next session, which begins in September, The New Haven Register reported.

“It is not frequent (that the high court intercedes and takes a case) but it happens from time to time,” said William F. Dow III, a New Haven-based defense attorney. “Essentially, the Supreme Court will reach out and take a case that they’re particularly interested in or a case that will have particular import.”

Lutters fatally shot 38-year-old Travis Hazelwood, a fare who police say tried to rob the cabbie with a pair of scissors, on June 15, 2001, in the Fair Haven neighborhood of New Haven.

Police and prosecutors determined the shooting was justified, but charged Lutters with carrying a pistol without a permit, a felony that carries up to five years in prison and fines of up to $5,000.

Harper threw out the charge last year, ruling that Lutters’ leasing the cab made him eligible for the exemption from the pistol permit requirement.

Assistant State’s Attorney John P. Doyle, who prosecuted the case, argued that, if cab drivers are exempt, “where’s the line drawn?"