Posted on 07/13/2007 1:44:20 PM PDT by Jim Robinson
PRESS RELEASE
July 13, 2007
Contact: James Bopp, Jr.
Phone: 812-232-2434; Fax 812-235-3685
jboppjr@aol.com
Today, the FEC filed a joint motion asking the D.C. district court to enter a declaratory judgment against the FEC and in favor of the Christian Civic League of Maine ("CCL") in its as-applied challenge to the "electioneering communication" prohibition. The motion was joined by CCL and the intervenors (Sen. McCain and other primary sponsors of the McCain-Feingold law). This will resolve CCL v. FEC and is significant because it establishes two key elements to the scope of the protection for genuine issue ads from the electioneering communication prohibition in the wake of the Supreme Court’s recent decision in FEC v. Wisconsin Right to Life Committee ("WRTL II").
The district court in CCL v. FEC had dismissed the case as moot, but this decision was vacated by the U.S. Supreme Court and remanded for consideration in light of the Supreme Court's recent decision in WRTL II. WRTL II unanimously rejected the same sort of mootness arguments on which the district court in CCL v. FEC had relied.
In WRTL II, the High Court held that the electioneering communication prohibition was unconstitutional as applied to three anti-filibuster grassroots lobbying ads that WRTL wanted to run in 2004. This was so because the FEC and intervenors failed to prove that the ads were, in the words of the Supreme Court's "genuine issue ad" test, "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The Supreme Court said that, in any case where there is doubt as to whether the test is met, "[t]he First Amendment requires us to err on the side of protecting political speech rather than suppressing it," and "[w]e give the benefit of the doubt to speech, not censorship." Now, the FEC and intervenors have conceded that CCL's "Crossroads" ads could not meet this test and are constitutionally protected.
The Crossroads ad differs from the three ads considered in WRTL II because it adds two additional elements. First, the ad states the position of the public official being lobbied on the issue involved. Second, it criticizes the legislator's position on the issue by characterizing it as "unfortunate." The three ads at issue in WRTL II did neither. Here is the text of the Crossroads ad (without the mandated disclaimer at the end):
Our country stands at the crossroads -- at the intersection of how marriage will be defined for future generations. Marriage between a man and a woman has been challenged across this country and could be declared unconstitutional at any time by rogue judges. We must safeguard the traditional definition of marriage by putting it beyond the reach of all judges -- by writing it into the U.S. Constitution. Unfortunately, your senators voted against the Marriage Protection Amendment two years ago. Please call Sens. Snowe and Collins immediately and urge them to support the Marriage Protection Amendment when it comes to a vote in early June. Call the Capitol switchboard at 202-224-3121 and ask for your senators. Again, that's 202-224-3121. Thank you for making your voice heard.By moving for declaratory judgment in favor of CCL, the FEC and intervenors concede that an ad of this sort that mentions and criticizes a public official's position on an issue is a genuine issue ad and may not be prohibited. This is in stark contrast to the position of Sen. McCain and the other intervenors before the Supreme Court, where they insisted that WRTL's anti-filibuster ads were "sham," not genuine, issue ads (and therefore subject to the electioneering communication prohibition) because the ads (a) "took a critical stance regarding a candidate's position on an issue" and (b) "referred to the candidate by name."
WRTL II was an implicit rejection of this argument that legislators could shield themselves from criticism by the people in contradiction to the First Amendment. The history of British and American law leading up to the First Amendment shows that the First Amendment was enacted precisely to forever bar public officials from trying to prohibit criticism of their actions.
James Bopp, Jr., lead counsel for CCL, states: "The right of the people to freely criticize politicians' positions on issues was established by the First Amendment. The fact that campaign finance 'reformers' only recognize this after being forced to do so by the Supreme Court reveals a fundamental, fatal flaw at the core of the modern campaign finance 'reform' movement. In reality, the First Amendment is the nation’s most fundamental 'campaign finance reform.'"
James Bopp, Jr. has a national campaign finance and election law practice with Bopp, Coleson & Bostrom. He is General Counsel for the James Madison Center for Free Speech.
CFR is the reason he doesn't belong anywhere near the White House, not even as a tourist.
L
Good news. Hopefully the whole unconstitutional mess will be killed before long.
I'll second that. And as bad as the recently-defeated Mexican Invasion Surrender Bill was, that's saying something.
I like this part.
Oh, yeah. He’s right on the money there.
Jim, I wonder how many degrees will now be found in the “mootness” of this and subsequent cases?
I'd say that the above makes a lot of CFR moot, but that's just me. I believe the first amendment should be the law of the land when it comes to campaigning. Dump McCain-Feingold and all anti-free speech campaign restrictions. Dump the FEC!!
The say the money in campaigns is corrupt. Well, if that’s true, I think I’d prefer the corrupt money in campaigns over the corrupt politicians.
Money will chase politicians as long as politicians chase our money.
'Free Speech Zones; the utter gall.
On a related note....
ping for referance.
BCRA takes another hit and this seems like Sect. 203 is
as dead as dead gets.
I agree with you on the above point. Frankly, that is the one issue that has me somewhat soured on Fred Thompson. I know he has since come to the conclusion that CFR "doesn't work", but how did he EVER justify supporting it? His supporters speak of his federalist philosophy and how he is true to the constitution, but that flat out does not square with his past CFR advocacy. I still support Fred over Romney, Rudy, and of course McCain. But I am not comfortable with giving Fred an intellectual free pass in this area.
That’s also my biggest criticism of Bush.
The Political Speech Suppression Act (a.k.a., BCRA and McCain-Feingold) is the greatest violation of Free Speech since the Alien and Sedition Acts. No individual or group has an obligation to obey this law. Any attempt by any government official to enforce this law is a violation of Free Speech and therefore void (this includes the 2003 ruling by the SCOTUS). 5 of the 9 Supremes realize this and the FEC is beginning to catch on. Now it's the Congress's turn.
Tell that to the left and McCain supporters.
Although I agree to an extent. In reality BCRA §203 may
be dead, technically it stills breathes, be it on life
support only.
Roberts doesn`t overturn, he just evicerates. While not
overturning and ruling §203 null and void he did state,
” McConnell held that express advocacy of a candidate or his opponent by a corporation shortly before an election may be prohibited, along with the functional equivalent of such express advocacy.
We have no occasion to revisit that determination today.
...because §203 is unconstitutional as applied to the advertisements before us, it is unnecessary to go further and decide whether §203 is unconstitutional on its face.”
Alito stated in his concurrence,
“...we will presumably be asked in a future case to reconsider the holding in McConnell v. Federal Election Comm.”
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