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
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
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
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!