McCain-Feingold's Electioneering Communication Prohibition Held Unconstitutional as Applied...

Today the U.S. District Court for the District of Columbia held that the ban on corporate electioneering communications is unconstitutional as applied to the three grassroots lobbying ads for which Wisconsin Right to Life ("WRTL") sought judicial relief in WRTL v. FEC. Judge Leon wrote the opinion and was joined by Judge Sentelle in the majority of the three-judge court.

The ads were run in 2004 when WRTL did radio and television ads urging people in Wisconsin to contact Senator Kohl and Senator Feingold and ask them to oppose the ongoing filibusters of President Bush's judicial nominees. Because Senator Feingold was a candidate, WRTL had to stop running its ads when the electioneering communication prohibition period began. WRTL sought judicial relief to continue running its ads, which was denied at the time.

Today the District Court first decided that the grassroots lobbying ads were not the functional equivalent of express advocacy, as the U.S. Supreme Court had required in its analysis in McConnell v. FEC (which upheld the electioneering communication only against a facial challenge). Second, the District Court held that the FEC had not met its burden of proving that the prohibition was narrowly tailored to a compelling state interest as applied to the ads. So the Court held that the prohibition was unconstitutional as applied to these ads.

James Bopp, Jr., attorney for WRTL comments: "This is a victory for the right of the people to lobby their members of Congress on upcoming votes even if there is a pending election. This grassroots lobbying is simply self-government at work, which is protected by the First Amendment."

The opinion is available on the district court's website at http://www.dcd.uscourts.gov/opinions/district-court-2006.html.

James Bopp, Jr. has a national campaign finance and election law practice. He is General Counsel for the James Madison Center for Free Speech.

PRESS RELEASE
November 14, 2006
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685

Court says issue ads OK during elections
MATT APUZZO, Associated Press Writer

http://news.yahoo.com/s/ap/20061221/ap_on_el_ge/campaign_finance_lawsuit

WASHINGTON - A federal court on Thursday loosened restrictions on corporations, unions and other special interest groups that run political advertising in peak election season.

The 2-1 ruling said groups may mention candidates by name in commercials as long as they are trying to influence public policy, rather than sway an election.

The ruling came in a challenge to the so-called McCain-Feingold law designed to reduce the influence of big money in political campaigns. The law banned groups from using unrestricted money to run advertisements that name candidates two months before a general election or one month before a primary.

Wisconsin Right to Life, an anti-abortion group, has been fighting the law since 2004, when it sought to run an advertisement urging voters to contact Wisconsin Sens. Russ Feingold and Herb Kohl, both Democrats, and ask them not to hold up President Bush's judicial nominees.

Because Feingold was running for re-election in 2004, the ad was prohibited. Wisconsin Right to Life argued that it wasn't trying to influence an election and said the law restricted its constitutional right to petition the government.

Some lawmakers have predicted such a ruling would create a loophole in the 2002 law. Advocacy groups have used ads similar to those paid for by the Wisconsin group to advocate for and against candidates.

Supporters of the law quickly criticized the ruling. Rep. Martin Meehan, D-Mass., a co-sponsor of the campaign finance law, said he was disappointed and that the decision was written narrowly and should not be seen as a "carte blanche" to get around the law.

The case automatically heads to the Supreme Court for review. If the high court agrees with Thursday's decision, the justices may have to establish a test to differentiate genuine issue ads from phony ones.

James Bopp, an attorney for Wisconsin Right to Life, said the McCain-Feingold law is flawed because politicians assume people only want to influence elections and don't care about influencing public policy.

"To them, what's important is whether they're going to be in office two years from now," Bopp said. "But the people, what's important to them is the laws that are being enacted right now."

The Federal Election Commission had argued that it needed a consistent "bright line" rule to prevent organizations from influencing elections using phony issue advertisements, but the three-judge panel disagreed.

"The virtues of a bright-line rule surely cannot alone justify regulating constitutional speech," U.S. District Judge Richard Leon wrote.

Leon was joined in the opinion by U.S. Court of Appeals Judge David B. Sentelle. U.S. District Judge Richard W. Roberts dissented.

Federal Election Commissioner David M. Mason said the commission would review the opinion and hoped to have the matter resolved by the 2008 Iowa caucuses.

Yesss! Still, I think it's unconstitutional no matter how it's applied.

The only effect has been to give Democrats (who are the only ones who take advantage of this) a club to beat normal people with. When I worked on the last Bush campaign, the Dems were going through our records - most of them maintained by elderly volunteers - all the time looking for some erroneous attribution of a $100 contribution. This paralyzed us because nobody, including our attorneys, was sure when it was legal to accept something and when not.

I realize that the GOP could have done this to Dems, too, but that is never our style (a good thing, in my opinion).

I wish this whole idiotic law would be overturned.

Similar thread from earlier today:

Panel Says Issue Ads OK During Elections
	Posted by SmithL On News/Activism 12/21/2006 12:56:16 PM CST · 9 replies · 200+ views AP via SFGate ^ \| 12/21/6 \| MATT APUZZO WASHINGTON -- The federal government cannot prohibit advocacy groups from running issue advertisements during peak election season, a panel of federal judges ruled Thursday. The 2-1 ruling was issued in a case involving a Wisconsin anti-abortion group that challenged congressional restrictions on ads by corporations, labor unions and other special interest groups that mention candidates two months before a general election. Some lawmakers have predicted such a ruling would create a loophole in the 2002 McCain-Feingold campaign law, which attempted to reduce the influence of big-spending special-interest groups in elections. The case automatically heads to the Supreme Court for review....

McCain Feingold and Kelo were the two worst decisions since Roe v. Wade and every time I read of abominations like Right to Life being unable to run ads asking Christians to call their congressmen to vote down a filibuster, I am just struck aghast.

McCain is a tyrant, unworthy of holding political office, if he truly believe Right to Life shouldn't be able to run ads urging a vote against a filibuster.

Amazing...you can see pornography everywhere, and strip clubs in small towns across America, but the government thinks Christian groups should not be able to run ads against filibusters.

God help us, but I truly cannot see how this country can last much longer with the anti-American mentality of our judicial system and our politicians.

Ed

Ed

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McCain-Feingold's Electioneering Communication Prohibition Held Unconstitutional as Applied to Genuine Grassroots Lobbying