Conservatives to Bush: Don't Defend Campaign Finance Law

By Jeff Johnson | July 7, 2008 | 8:28 PM EDT

Capitol Hill ( - The first two court challenges to the "Bipartisan Campaign Reform Act" that President Bush signed into law last Wednesday were filed on the same day, within seconds of each other, and right after court offices had opened for the day.

Now a conservative group that had called on Bush to veto the bill, is asking him to limit the Justice Department's response to the lawsuits.

David Keene, chairman of the American Conservative Union (ACU), led a coalition of more than sixty conservative leaders who wrote Bush a week before the bill was signed, asking him to veto the measure because of its "ill-conceived and unconstitutional" provisions.

Bush signed the bill over their objections, but acknowledged his reservations.

"Certain provisions present serious constitutional concerns," the president said.

Specifically, Bush questioned limiting individual contributions to political parties in connection with federal elections and what he called "the broad ban on issue advertising."

"Taken as a whole, this bill improves the current system of financing for federal campaigns, and therefore I have signed it into law," Bush explained.

"I expect that the courts will resolve these legitimate legal questions as appropriate under the law," he predicted.

But Keene calls Bush's action "passing the buck."

"By signing the bill, the president ignored his own understanding of a president's responsibility and passed the buck to the courts. We are confident that the courts will respond by doing their job, but we are disappointed in his failure to stand up for what he knows is right," continued Keene.

ACU is asking Bush to intervene in the Justice Department's defense of BCRA, if he truly believes parts of the bill are unconstitutional.

"Since the president admits to 'reservations' about the constitutionality of some of the provisions of the bill," Keene said, "we call on him to order his Department of Justice to refuse to defend unconstitutional provisions.

"There is no reason the Justice Department should be put in the position of defending provisions that the president of the United States considers unconstitutional," he added.

James Bopp is a practicing attorney with the law firm of Bopp, Coleson, and Bostrom in Terre Haute, Indiana. Since 1980, a significant portion of his law practice has involved the representation of not-for-profit corporations and political action committees regarding compliance with the Federal Election Campaign Act. In that capacity, he has argued four lawsuits that resulted in five separate Federal Election Commission regulations being struck down as violations of the First Amendment.

"There is ample precedent for the Justice Department to refuse to defend unconstitutional laws," Bopp explained. "There have certainly been several presidents who have signed bills and then instructed the Justice Department not to defend, and there was even an example of a president who signed a bill and then instructed his Justice Department to sue to overturn the law."

In fact, President Clinton believed the Dornan amendment, which required the expulsion of all HIV-positive military service members, was unconstitutional and instructed the Justice Department not to defend it in court. The law was later repealed.

Bopp says any such decision by Bush would not affect the cases until they reached the Supreme Court on appeal. The lawsuits first must be heard at the U.S. District Court level, where attorneys for the Federal Election Commission and the Federal Communications Commission will argue the government's case.

That process, Bopp predicts, could take as long as two years. However, Bopp expects to see an injunction quickly issued to block enforcement of the challenged provisions of the law.

Bush said Wednesday he hoped he could work with the Congress to correct what he called "defects" in the law. The White House has not commented on the ACU proposal.

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