The Joy of Sleepless Nights & Litigation

January 29, 2009

By Chip Mellor

Long hours and late nights are familiar experiences for IJ litigators. We are always up against tough odds, so every case requires extra effort. IJ litigators expect this; they thrive on it.

But occasionally a case comes along that really demonstrates just how dedicated IJ litigators are, and how a special esprit de corps develops in the midst of exhausting litigation. Most recently, that case was v. FEC, our challenge to free speech restrictions imposed through campaign finance laws that limit independent expenditures in elections.

It is legal for one person independently to spend an unlimited amount of money to influence an election. But it is illegal if two or more people—independent of any party, politician, corporation or union—pool their funds to make their views known. We challenged this law because it violates’s and its members’ First Amendment rights to free speech and association. Although the First Amendment is profoundly important, the factual record needed to establish this claim is very modest.

The FEC, however, has resorted to a defense designed to complicate and confuse the issue. It sought to exploit U.S. Supreme Court jurisprudence that upheld campaign finance laws if they claim to prevent the “appearance of corruption,” a hopelessly vague and subjective standard. The FEC attempted to introduce thousands of pages of documents ranging from newspaper clippings to hearsay testimony that discuss the activities of many other people or organizations, but not or anyone affiliated with it. In essence, the FEC seeks to cast a cloud of uncertainty over by burying it in paper.

Given the utter lack of connection to and the myriad unsubstantiated statements and irrelevant facts, it was essential that the FEC’s position be taken apart piece by piece lest any such tenuous grounds be accepted by the Court. This was no small task given the volume of the FEC’s filing and the short deadline we faced. The litigation team leapt into action, led by IJ Senior Attorney Steve Simpson and composed of three other IJ lawyers and our colleagues at the Center for Competitive Politics. Point by point, the team refuted the FEC’s claims over the next 14 days. Sleepless nights, mounds of documents that amassed to more than 300 pages of top-flight legal work and frequent infusions of Starbucks coffee dominated team members’ lives. Yet in the midst of it all, the wisecracks, the energetic strategy discussions and the enthusiastic commitment to each task no matter how small, revealed the morale that is at the heart of IJ’s success.

The trial court judge will now examine the massive record, make factual findings and certify the case to the full D.C. Circuit Court of Appeals for a ruling on the merits. Although we hope it will not be necessary to mount another effort like the one just described, we will continue to pursue this case with unrelenting vigor until we secure the vital free speech rights at stake.

That’s the IJ Way.

Chip Mellor is IJ’s president and general counsel.

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