Sekulow Discusses Legal Attempt to Overturn Campaign Finance

President Bush has signed the campaign finance reform bill into law, but the issue is still generating a firestorm of controversy. Many contend the new law is unconstitutional because it restricts the freedom of speech. Pat Robertson spoke with Jay Sekulow of the American Center for Law and Justice about the attempts to overturn the law in court.

PAT ROBERTSON: With me here is the chief counsel of the American Center for Law and Justice, Jay Sekulow. Sen. Mitch McConnell has filed a very public lawsuit with Ken Starr as his lead counsel. The American Center for Law and Justice is filing a suit. You¡¯ve gotten the brief in right now?

JAY SEKULOW: It is going in as we speak and there will be about a dozen lawsuits filed at this point. Our case focuses specifically on two areas of the restriction: this criminalization of speech. Not only are there prohibitions saying: within 60 days of the election of a candidate, your ad can't run, which is unconstitutional. It criminalizes this kind of behavior. It also prohibits minors, 17-year-olds, from making a donation to a political campaign.

ROBERTSON: A 17-year-old will no longer be able to make a political contribution?

SEKULOW: That is one the aspects of this bill that has not gotten a lot of attention, but it is completely unconstitutional. It was an attempt to stop money flowing, but what it¡¯s done is stop the free speech rights of 17-year-old¡¯s.

ROBERTSON: And this criminalization, that¡¯s something that¡¯s being flying under the radar screen too. What exactly is that provision?

SEKULOW: It increases the criminal sanctions. Actually criminal sanctions that are given could be up to five years for violating the rules and regulations under the campaign finance reform. This is like the Alien and Sedition Act of years and years ago, decades ago.

ROBERTSON: Look, I know it is hot up there politically, but I just think that the President just did a great disservice to the American people for not standing up for the Constitution by signing this in law. I know it didn¡¯t have any fanfare, but this was an outrage.

SEKULOW: Let me tell you what they did do, and this is going to be very helpful. The way the legislation came down, it actually gives you an access to the courts on an expedited basis. The President, when he signed the bill, said that this was constitutionally troubling, at least these aspects of it. So you had the immediate challenge right. I don't think these will ever see the light of day. So the parts of it that are legitimate will go into effect, the parts that are not will be struck down, so it did gave the avenue. But I¡¯ll tell you, you talk about a serious restriction on speech, the idea of prohibiting ads for 60 days in advance, no issue advocacy ads, no ads that mention a candidate for campaign, it¡¯s outrageous. It¡¯s not supposed to work that way in the Constitution.

ROBERTSON: Senator McCain is like a hog at the trough. He's been sucking up campaign contributions from parties at interest for years, is he trying to cleanse his soul with this bill? I can¡¯t understand it?

SEKULOW: You know, the political machine that has been going on in Washington on this issue has been unbelievable. We just heard the report about the Democratic National Convention, that $12 million in campaign contributions just came in the last few days. What you have here is political correctness run amuck. There is this sense that, "we can get this through, we can change things and modify the system." Yet what they did significantly was restrict free expression, and criminalizing free speech is a very, very dangerous precedent.

ROBERTSON: Let me ask you about Valeo vs. Buckley [from 1976]. That was a landmark decision, and is there a possibility as an appeal goes forward that that would be overturned?

SEKULOW: Some justices have questioned the validity of that decision and others have not. The Supreme Court is closely divided on these kind of issues¡­ You watch the Supreme Court in action on these cases, and they are a conflicted court. However, when it comes to speech issues generally, the court has been protective. And I think as long as focus the issue on the speech aspect of it, we carry the day.

ROBERTSON: What is the Justice Department going to do? They¡¯re supposed to support the law.

SEKULOW: They have a constitutional obligation to defend it. I¡¯m going to urge them to confess error, they can do that, it¡¯s a very rare technique, but they can go to court and confess error, say "We think this is unconstitutional." But the way they defend it will be indicative of how the Department of Justice understands this as a speech restriction. By the way, the Democrats have solicited the assistance of Seth Waxman, the former Solicitor General of the United States under Clinton, to defend their position on this. They¡¯re already figuring that the Justice Department may not be as helpful on this as they would like it to be.

ROBERTSON: Last thing, Fifth Circuit. I understand that Sen. Russ Feingold said there is no way the Judiciary Committee will ever approve a Bush nominee to the Fifth Circuit Court of Appeals. Is that correct? That¡¯s outrageous!

SEKULOW: I was at the hearings. He is taking the position that the Fifth Circuit is a pivotal Circuit, which it is, and he¡¯s taking the position that, basically, if you¡¯re a conservative, if you¡¯re pro-life, if you¡¯re a Christian, you don't qualify. Chuck Schumer from New York said that. We¡¯ve got another nominee coming up, well qualified, Texas Supreme Court Justice Priscilla Owens has a tremendous reputation, tremendous record, but they are already marshalling their forces to try to stop that nomination.

ROBERTSON: Schumer said if you are what?

SEKULOW: "We don't want the conservative ideologues on the court." He said it just like that.

ROBERTSON: Conservative ideologues?

SEKULOW: No ideologues, we don¡¯t want any ideologues. He said the election for President Bush was too close to allow for a conservative stacking of the Supreme Court or the Court of Appeals.

ROBERTSON: But it¡¯s been stacked to the liberals!

SEKULOW: They don¡¯t mind when they¡¯re in authority. What you have right now is an unbelievable lack of balance in the federal courts. Reagan appointees are now getting to retirement age and a lot of them are retiring, and you¡¯ve got the Clinton-Gore appointees who are in their prime. So we need the same strategy, we need young, aggressive judges to be appointed, and that¡¯s what the President has done, but getting them through is the challenge.

ROBERTSON: He¡¯s putting them up, but has he got what it takes? As I look at the record, I don't believe he has vetoed a single piece of legislation, has he?

SEKULOW: I don¡¯t know about the vetoes, but I know on the judge issue that they are committed at the White House to get it through, and they recognized with the Pickering nomination that the Democrats have a 10-9 majority on the Judiciary Committee and it is a roadblock. But the nominees that have been put forward have been excellent.

ROBERTSON: I¡¯m glad for the nominees, but he has to fight this case in the court of public opinion, he¡¯s really got to get on that bully pulpit.

SEKULOW: Absolutely. This needs to be a major issue, and the White House is starting to make it a major issue. I think they saw with the Pickering nomination that this is a real fight and probably one of the most important fights we can be engaged in.

ROBERTSON: Ladies and gentlemen, the Congress of the United States passes something they know is unconstitutional, the President signs the bill that he knows is unconstitutional. They shirk their constitutional responsibility and shuffle it off to the Supreme Court and say, "Let the Supreme Court decide," but they know very well they have an obligation to defend and uphold the Constitution of the United States, but they¡¯re not doing it. The Court will come down undoubtedly and eviscerate this dreadful law that we¡¯ve been complaining about, but why should we have to go to all that trouble? So that politicians can all say, "We voted for campaign finance reform, aren¡¯t we nice. Forget the fact that we violated the Constitution, but the Court will overrule it, so there¡¯s nothing we can do." It is cowardice in the highest level of our land and it makes me sick!