Judges Win Right to Identify Their Political Party, Ask for Campaign Funds
PRESS RELEASE
Wednesday, July 14, 2010
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com
Yesterday, a federal appellate court decided that Kentucky judicial candidates can say what political party they are a member of and personally ask for funds for their campaign. The Court also affirmed that judicial candidates cannot constitutionally be prohibited from stating their views during their campaigns. It directed the district court to determine whether an unclear Kentucky rule unconstitutionally reaches such statements. The case was brought by Marcus Carey, a former Kentucky Supreme Court candidate, against the Commonwealth of Kentucky.
Mr. Carey wanted to identify his political party to voters. However, Kentucky's judicial campaign rules prohibit this. The federal court held that the clause was unconstitutional because stating party membership is just short hand for stating one's political views, which the First Amendment protects.
Mr. Carey also wanted to personally ask for money by signing letters sent to donors. This, too, Kentucky's judicial campaign rules prohibit. The court decided this violated Mr. Carey's free speech rights, noting that such rules only tends to help incumbents, the wealthy, and the well-connected.
Last, Mr. Carey wanted to tell voters how he would approach the law as judge and to state his views on issues such as abortion. Kentucky's rules appeared to prohibit this, as well. The court decided that because the rules were not clear as to what they restricted, the case should be returned to the trial court to allow for further review of its meaning.
James Bopp, Jr., lead counsel for Mr. Carey, believes a great victory has been won for Kentucky judicial candidates: "Kentucky judicial candidates are now free to exercise their free speech right to state their views and their party membership, and to personally ask for money to fund their campaigns." He further notes, "Kentucky voters can now be adequately informed of each candidate's views and make informed choices on election day." Mr. Bopp successfully argued the 2002 case Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which established that judges do not lose their First Amendment rights when they stand for election.
The case is Carey v. Wolnitizek, et al., Civil Action Numbers 08-6468/6538. The Sixth Circuit decision is available in PDF format online at the James Madison Center's website, www.jamesmadisoncenter.org, under the "Judicial Accountability Project" link.
James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and Co-Chairman of the Election Law Subcommittee of the Federalist Society.
Candidate and Supporters Sue Virginia For Violating First Amendment Right To Circulate and Sign Candidate Petitions
PRESS RELEASE
Tuesday, July 13, 2010
Contact: James Bopp, Jr.
Phone: 812.232.2434; Fax: 812.235.3685; jboppjr@aol.com
On Tuesday, Herb Lux, an independent candidate for the United States House of Representatives in Virginia's Seventh Congressional District, and three of his supporters sued Virginia to protect their right to circulate and sign a candidate petition in support of Herb Lux's candidacy. The State Board of Elections rejected a majority of Mr. Lux's petitions and refused to certify him for the ballot, citing a Virginia law that requires petition circulators to be residents of the congressional district. The group has asked the court to rule that the residency requirement violates their freedom of speech and to order the State Board of Elections to count the excluded signatures.
The Board of Elections rejected Mr. Lux's signatures because Virginia law requires all petition circulators to live in the congressional district. When applied to Mr. Lux, the law prevents him from circulating his own petitions. The First Amendment clearly protects Mr. Lux's freedom to circulate his own candidate petitions. It also protects his supporters' freedom to help further his candidacy by signing a petition. If the Board counts all of the signatures collected by Mr. Lux, the group is more than confident that he will have collected more than the 1,000 signatures necessary to appear on the November ballot.
James Bopp, Jr., lead counsel for Mr. Lux and his supporters, stated, "The Supreme Court has clearly stated that a state may not prohibit large classes of people from circulating petitions unless it has a really good reason. There is simply no reason for prohibiting Mr. Lux from circulating his own petitions. It's a silly rule and it makes no sense. And it's really hurting Mr. Lux because he has been forced to place his campaign on hold while the court sorts out this thing. Hopefully, he will get the relief he seeks soon enough for him to wage an effective campaign."
The case is before the Honorable Robert E. Payne in the United States District Court for the Eastern District of Virginia, Richmond Division. The case is Lux v. Rodrigues, No. 3:10-cv-482. The complaint and the brief in support of motion for preliminary injunction may be viewed at www.jamesmadisoncenter.org.
James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech, former Co-Chairman of the Election Law Subcommittee of the Federalist Society, and was recently recognized as the Republican Lawyer of the Year by the National Republican Lawyers Association.
Corporations Sue Minnesota For Violating First Amendment Right To Make Contributions, Produce Political Ads
PRESS RELEASE
Thursday, July 8, 2010
Contact: James Bopp, Jr.
Phone: 812.232.2434; Fax: 812.235.3685; jboppjr@aol.com
Minnesota Citizens Concerned for Life, Inc., The Taxpayers League of Minnesota, and Coastal Travel Enterprises, LLC want to be able to make contributions to political parties and/or candidates, and also produce political ads supporting the candidates they like. The First Amendment says they have the right to do these things. But Minnesota law forbids it.
Minnesota says that corporations may only make political ads if they pay for them from what the State calls a "political fund." These political funds have lots of burdensome registration, record-keeping, and reporting requirements. But the Supreme Court recently ruled in a case called Citizens United that corporations have a First Amendment right to make political ads from their own money, without having to submit to burdensome registration, record-keeping, and reporting requirements. So Minnesota requires the very thing the Supreme Court said is unconstitutional.
Minnesota also bans political contributions from corporations, unless they are made through a "conduit fund" that has these same type of burdensome requirements. Even then, corporations do not get to decide which candidate the money in their conduit fund should be contributed to. Instead, whoever donates to the fund gets to decide. But every other type of association— including unincorporated labor unions—get to decide which candidates the money in their funds should be contributed to. This treats corporations differently than everybody else, and prevents them from making contributions they want to make.
As a result, MCCL, Taxpayers League and Coastal Travel filed suit in federal court yesterday, asking the Judge to strike these unconstitutional laws.
James Bopp, Jr., lead counsel for the Corporations, stated, "The Supreme Court was clear when it said in Citizens United that corporations have free-speech rights. Minnesota's attempt to subvert the Supreme Court is blatantly unconstitutional. And, the reasoning of Citizens means that corporations should also be able to make their own contributions, without having to use a special "fund." Regardless, the Constitution forbids government treating similar groups differently, as Minnesota does to corporations and every other type of association."
The case is before the Honorable Donovan Frank, District Judge in the United States District Court for the District of Minnesota, in Minneapolis. The case number is 10-CV-2938 DWF/JSM, and is known as MCCL v. Swanson. The complaint may be viewed at www.jamesmadisoncenter.org/.
James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech, former Co-Chairman of the Election Law Subcommittee of the Federalist Society, and was recently recognized as the Republican Lawyer of the Year by the National Republican Lawyers Association.
Wisconsin Supreme Court Establishes Victory for Justice Gableman and the First Amendment
PRESS RELEASE
Thursday, July 1, 2010
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com
Yesterday, the Wisconsin Supreme Court, in a 3-3 decision, held that a political advertisement run by successful Wisconsin Supreme Court candidate Justice Michael Gableman did not violate the State's rules of judicial ethics. The case, In re Gableman, involves a political advertisement Justice Gableman ran against his opponent in his 2008 campaign. The Wisconsin Judicial Commission alleged that his ad was false and misleading and warrants disciplinary action.
The Wisconsin Code prohibits judicial candidates from "knowingly or with reckless disregard for the statement's truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent." Justices Prosser, Roggensack, and Ziegler held that the ad was objectively true and therefore did not violate the rule. The Judicial Commission had the burden of proof to persuade a majority of Justices that its claim had merit. It's failure to do so means Justice Gableman has prevailed.
Says James Bopp, Jr., lead counsel for Justice Gableman, "the case is over and Justice Gableman has been vindicated." "The government cannot constitutionally police campaign speech, as the State of Wisconsin unsuccessfully sought to do here," adds Bopp, "The First Amendment was designed to prevent precisely this type of censorship. True statements are entitled to complete constitutional protection."
Justice Gableman has issued the following personal statement:
Obviously, I am pleased to be victorious and to have been vindicated in this matter. More important than my personal victory, however, I hope this decision will mark the start of a time for healing for the Wisconsin Supreme Court. It is my hope that this affirmation of the Judicial Conduct Panel's unanimous recommendation for dismissal will come to be seen as a turning point and that the longstanding dysfunction which predated my election and which has plagued the court for over two decades can be put behind us and that we may see a more unanimous focus on the rule of law and, by extension, service to the people of this great state.
Copies of the two decisions are available at the James Madison Center's website, www.jamesmadisoncenter.org, under the "Judicial Accountability Project" link.
James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.
Tenth Circuit Adopts Unambiguously Campaign Related Principle, Follows Major Purpose Test
James Madison Center for Free Speech
1 South Sixth Street
Terre Haute, Indiana 47807-3510
www.jamesmadisoncenter.org
Press Release
July 1, 2010
Contact: James Bopp, Jr.
Phone: (812) 232-2434; Fax (812) 235-3685
jboppjr@aol.com
In an appeal in which the James Madison Center for Free Speech filed an amicus brief, the Tenth Circuit Court of Appeals has sided with the First Amendment.
The June 30 opinion in New Mexico Youth Organized v. Herrera adopts the principle that government may regulate political speech only when it is unambiguously related to the campaign of a candidate and holds that this principle survives the Supreme Court's 2010 decision in Citizens United v. FEC.
Applying this principle, the Tenth Circuit holds that New Mexico may not regulate two organizations as political committees, because they are neither under the control of candidates, nor do they have the major purpose of nominating or electing candidates. The court also rejects a $500 spending threshold that automatically converts organizations into political committees.
The Tenth Circuit's holding is significant, because it limits government's ability to regulate organizations as full-fledged political committees, thereby imposing on them all the burdens – including registration, extensive recordkeeping requirements, and extensive reporting requirements – that go along with being a political committee. As the Supreme Court has explained, these burdens are so onerous that many organizations, rather than complying with them, will just forego their political speech. This is at odds with the Supreme Court's repeated holdings that political speech is at the very core of what the First Amendment protects.
"This is another victory for free speech," said James Bopp, Jr., general counsel for the James Madison Center for Free Speech. "The Tenth Circuit has adopted the unambiguously-campaign-related principle lock, stock, and barrel. The Tenth Circuit now joins many courts that have recognized this principle, which the Supreme Court established in 1976 in Buckley v. Valeo."
The Tenth Circuit's opinion is available at http://www.ck10.uscourts.gov/opinions/09/09-2212.pdf.
James Bopp, Jr. has a national federal and state election law practice. He is an attorney with Bopp, Coleson & Bostrom and General Counsel for the James Madison Center for Free Speech. He is also a former Co-Chairman of the Election Law Subcommittee of the Federalist Society.
U.S. Supreme Court Returns Petition Signing Case to District Court
Contact: James Bopp, Jr.
Phone: (812) 232-2434; Fax: (812) 235-3685
Today, the Supreme Court of the United States, in an 8-1 vote, issued its opinion in Doe v. Reed. The opinion allows Protect Marriage Washington to ask the District Court in Washington for an exemption from publicly reporting the personal information of those who support traditional marriage. Although the Supreme Court denied Protect Marriage Washington's request to keep petition signers' personal information private in all situations, the Court agreed with Protect Marriage Washington that people who sign a petition are exercising their First Amendment right to free speech and can act to protect their privacy when supporting traditional marriage.
James Bopp, Jr., lead counsel for Protect Marriage Washington, the group that had asked the Court to protect the personal information of the nearly 140,000 individuals who had signed a petition supporting traditional marriage, stated, "We are pleased that the Supreme Court has recognized that individuals who support marriage should have the opportunity to protect their personal information from public disclosure. While we wish the Court had agreed with us and found that petition signers speaking on any issue should be protected from having personal information disclosed to the public, we are looking forward to returning to Washington and showing the Court that supporters of traditional marriage should have their personal information protected from disclosure." Mr. Bopp continued, "Supporters of traditional marriage have been subject to death threats, vandalism, and even the loss of their jobs merely for exercising their right to free speech. We are confident that the District Court will agree that these tactics have no place in the discussion of marriage and will prevent the release of the personal information on those who support traditional marriage."
This case will now return to the U.S. District Court for the Western District of Washington, where further proceedings will occur.
The Court's opinion, as well as other documents previously filed in this case, are available on the Madison Center website, http://www.jamesmadisoncenter.org, under the "Doe v. Reed (S. Ct. 2010)" heading.
James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.
Supreme Court Reviews Real Truth About Obama’s Claims
James Madison Center for Free Speech
1 South 6th Street
Terre Haute, IN 47807
www.jamesmadisoncenter.org
PRESS RELEASE
Thursday, April 29, 2010
Contact: James Bopp, Jr.
Phone: 812-232-2434; Fax: 812-235-3685
jboppjr@aol.com
On Monday, the Supreme Court granted The Real Truth About Obama’s (“RTAO”) request to hear its case, voided the lower court decision, and sent the case back to the Fourth Circuit to be considered in light of Citizens United.
A group of citizens formed RTAO in July 2008 because they wanted to provide accurate and useful information about then-candidate Barack Obama. Specifically, RTAO wanted to broadcast an ad explaining Obama’s support of abortion. RTAO also planned a website and wanted to distribute a letter in order to raise money for the ad.
However, if RTAO had proceeded, it was in danger of an enforcement action and civil and criminal penalties by the Federal Election Commission. Even though RTAO simply wanted to discuss issues without expressly advocating Obama’s defeat, the FEC rules may classify it as a PAC, subject to certain harsh requirements. RTAO asked for a preliminary injunction so that it may act before the 2008 election. The district court denied the preliminary injunction and the Fourth Circuit agreed. RTAO then asked the Supreme Court to consider the case.
James Bopp, Jr., counsel for RTAO, makes the following statement concerning the case: “The Supreme Court took a step towards protecting issue advocacy here. This case exemplifies the flaws in the preliminary injunction process as, almost two years after bringing this suit, RTAO remains chilled. We think that the Supreme Court’s Citizens United case bears heavily on the FEC’s broad and vague PAC definition rules and we are glad that the Fourth Circuit will have to take another look at it.”
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.
James Madison Center
for Free Speech
1 South 6th Street
Terre Haute, IN
47807
www.jamesmadisoncenter.org
PRESS RELEASE
Friday, March
26, 2010
Contact: James
Bopp, Jr.
Phone:
812/232-2434;
Fax:
812/235-3685;
jboppjr@aol.com
Whitewater
Resident
Challenges
Wisconsin
Campaign Finance
Laws
PRESS RELEASE
Tuesday, January
26, 2010
Contact: James
Bopp, Jr.
Phone:
812/232-2434;
Fax:
812/235-3685;
jboppjr@aol.com
Madison Center
Asks FEC To
Change
Regulations
Following
Citizens United
The James
Madison Center
for Free Speech
is asking the
Federal Election
Commission to
revise its
regulations in
light of the
Jan. 21 landmark
Supreme Court
decision.
The decision,
Citizens United
v. FEC,
recognizes that
federal law
banning
particular
corporate and
union spending
for political
speech is
unconstitutional.
The James
Madison Center’s
rulemaking
petition, filed
today, asks the
FEC to state
that it will not
enforce the
unconstitutional
bans against any
independent
spending for
political
speech,
including
independent
expenditures and
electioneering
communications.
The petition
also asks the
FEC to:
-
Repeal FEC
regulations
insofar as
they
implement
the bans
Citizens
United
struck down.
-
Acknowledge
that the
unconstitutional
law no
longer bans
corporations,
unions, or
membership
organizations
from
engaging in
independent
spending for
political
speech
beyond
people such
as union
members or
corporate
board
members,
stockholders,
executive
personnel,
or
administrative
personnel.
-
Repeal the
FEC
regulations
recognizing
exceptions
to the bans
on (1)
corporate
independent
expenditures
and (2)
corporate
and union
electioneering
communications.
The
exceptions
are no
longer
necessary,
because the
bans
themselves
are
unconstitutional.
“This is an
election year.
Speakers will
want to exercise
the First
Amendment rights
to political
speech Citizens
United
recognizes, so
the FEC should
adopt these
regulations
quickly, ” said
James Bopp, Jr.,
general counsel
for the James
Madison Center.
The rulemaking
petition is
available at
JamesMadisonCenter.org.
PRESS RELEASE
Tuesday October 20, 2009
Contact: James Bopp,
Jr.
Phone: 812/232-2434; Fax:
812/235-3685;
jboppjr@aol.com
U.S. Supreme Court
Prevents Release of
Referendum Petitions in
Washington
Today, a full panel of the
Supreme Court of the United
States, in an 8-1 vote,
issued an order preventing
the Washington Secretary of
State from releasing the
names, addresses, and other
personal information of over
138,000 individuals that
signed a referendum petition
that seeks to protect
traditional marriage in
Washington. The order will
prevent several groups from
making this personal
information available on the
internet and should protect
the petition signers from
the harassment similar to
what occurred in California
last November during the
campaign surrounding
Proposition 8.
James Bopp, Jr., lead
counsel for Protect Marriage
Washington, the group that
had asked the Court to
prevent the release of the
names, stated, “The Supreme
Court took a large step
forward today in protecting
the rights of citizens who
support a traditional
definition of marriage to
speak freely. No citizen
should ever have their
personal property destroyed
or receive death threats for
exercising their right to
engage in the political
process. The First Amendment
protects citizens from
government compelled
disclosure of their identity
when they are engaged in
political speech. The
Supreme Court seems to
recognize the gravity of
this situation and we look
forward to their review of
the case on appeal.”
On September 10, 2009, the
U.S. District Court for the
Western District of
Washington issued an order
preventing the release of
the names of the petition
signers. On October 15,
2009, the Ninth Circuit
issued a single page order
allowing the release of the
names. The Supreme Court’s
order will prevent the
release of the names until
Protect Marriage Washington
has an opportunity to
present their appeal to the
Supreme Court.
James Bopp, Jr. has a
national federal and state
election law practice. He is
General Counsel for the
James Madison Center for
Free Speech and former
Co-Chairman of the Election
Law Subcommittee of the
Federalist Society.
PRESS RELEASE
Friday, September 11, 2009
Contact: James Bopp, Jr.
Phone: 812/232-2434; Fax: 812/235-3685;
jboppjr@aol.com
Court Stops Release of Petition
Signers in Washington: Court Enters Order
Preventing the Secretary of State from
Releasing Copies of the Referendum 71
Petition
Yesterday, a United States District Court
Judge entered an order preventing the
Washington Secretary of State from releasing
the names of people who have signed a
referendum petition, seeking to protect
traditional marriage in Washington. This
order will stop several groups from using
the petitions to harass and intimidate
individuals who were merely exercising their
First Amendment right to sign a petition.
Protect Marriage Washington asked the Court
to prevent the release of the names of the
petition signers, arguing that the First
Amendment allows them to sign a petition
without having to publicly release their
names, and the Court agreed. Protect
Marriage Washington provided the Court with
many instances where people who support
traditional marriage have had their property
destroyed, received harassing phone calls,
and even been subject to death threats,
merely because of their support for
traditional marriage.
James Bopp, Jr., lead counsel for the
Plaintiffs stated, “The federal court has
taken a welcome step toward protecting
citizens who simply want to participate in
our democratic process and have their public
policy positions considered by the people.
No one should have to suffer vandalism and
death threats just because they support
government protection of traditional
marriage. Keeping the petition signatures
confidential will protect these people from
the harassment and intimidation that has now
so frequently characterized the response of
the gay rights lobby.”
The Washington Secretary of State argued
that the names had to be released because of
the Washington Public Records Act. The
groups who sought the release of the names
of the petition signers under this Act
included several groups who wished to place
the petitions on the internet, so that
people could easily access the names and
addresses of those who signed the petition
in order to threaten, harass, and intimidate
those individuals.
This situation in Washington is part of a
larger, concerted campaign of harassment and
intimidation of supporters of traditional
marriage by the gay rights lobby. The
campaign has involved gaining access to the
names of pro-marriage supporters, posting
their names and addresses on the Internet,
and inviting people to contact them. This
has triggered hundreds of cases of
harassment, vandalism and threats of
violence directed at marriage supporters
throughout the nation. Such personal
attacks occurred in large numbers after the
adoption of Proposition 8 in California last
November.
The order preventing the release of the
names of the petition signers will remain in
effect until the Court makes a permanent
ruling.
The case is before the Honorable Judge
Benjamin H. Settle in the United States
District Court for the Western District of
Washington, at Tacoma. The case number is
3:09-cv-05456-BHS. Attorney Stephen Pidgeon
(Bellevue, WA), an Alliance Defense Fund
Allied Attorney, is serving as local counsel
in the case.
James Bopp, Jr. has a national federal and
state election law practice. He is General
Counsel for the James Madison Center for
Free Speech and former Co-Chairman of the
Election Law Subcommittee of the Federalist
Society.
PRESS RELEASE
August 20, 2009
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax
812/235-3685;
jboppjr@aol.com
Vermont Right to Life files federal lawsuit
against Vermont Campaign Finance Law which Regulates
VRLC as a Political Committee, Requires Identification
on Electioneering Communications, and Requires Reporting
of Mass Media Activities
Vermont Right to Life has filed suit to strike down
three Vermont campaign finance laws which violate the
First Amendment by regulating VRLC as a political
committee, requiring identification on electioneering
communications, and requiring reporting of mass-media
activities.
Vermont Right to Life Committee Inc., wants to
distribute its newsletter, distribute pamphlets and a
petition, run radio ads, and do mass e-mail and a mass
mailing opposing physician-assisted suicide.
Yet VRLC fears these communications will bring serious
consequences under Vermont law.
Political Committee Definition
First, VRLC fears that doing any of its planned
communications would convert it into a political
committee under Vermont law. That means VRLC would have
to bear all the burdens Vermont places on political
committees. These include registering with the state,
designating a treasurer, recordkeeping, limits on
contributions received, extensive reporting, and
termination requirements.
VRLC asks that the court hold that these burdens are
unconstitutional. The reason is that the major purpose
of VRLC is not nominating or electing, candidates for
state or local office in Vermont. Thus it violates the
First Amendment to impose these serious burdens on VRLC.
Electioneering Communication
Second, VRLC's communications are deemed an
"electioneering communication" under Vermont law, so the
speech would have to include (1) VRLC's name, (2) VRLC’s
address, and (3) the name of the candidate, party, or
political committee by or on whose behalf VRLC fears
Vermont will say the speech is published. Some of VRLC's
speech - such as its future newsletters, mass e-mail,
pamphlet, and petition - will include (1) and (2) but
not (3). Other VRLC speech, such as its radio ads, will
include (1) but not (2) or (3), because, for example,
VRLC does not want to use precious air time for this
information.
Third, some of VRLC's speech is a "mass-media activity"
under Vermont law, so VRLC would have to report the
speech as a political committee would.
VRLC asks that the court hold the
electioneering-communications and mass-media-activities
definitions and requirements unconstitutional, because
they regulate speech that Vermont may not regulate.
PAC Reporting of Contributions
Meanwhile, one of VRLC's PACs, the Fund for Independent
Political Expenditures, asks that the court hold
unconstitutional both the limits on the contributions it
receives and the requirement that it report the name and
address of anyone who contributes more than $100 to
VRLC-FIPE.
“This Vermont law regulating VRLC’s speech is
unconstitutional, because VRLC’s speech is not
unambiguously related to the campaigns of state or local
candidates in Vermont,” said James Bopp, Jr., counsel
for VRLC and VRLC-FIPE. “In addition, the Vermont law
regulating VRLC and VRLC-FIPE is constitutional in part
because it is vague and in part because it fails
constitutional scrutiny.”
Background
VRLC, a non-profit corporation exempt from federal
income taxation, is a non-sectarian and non-partisan
organization and is not connected with any political
candidate or political party. Nor is it connected with
any political committee other than its own. VRLC
distributes educational material; has organized county
chapters; publishes its regular newsletter; and enlists
the help of key contacts, speakers, and volunteers
across the state.
VRLC-FIPE is an organization that does only independent
expenditures. That is, it expressly advocates the
election of candidates for state or local office in
Vermont without coordinating the speech with such
candidates. It makes no contributions to such
candidates.
The action is
Vermont Right to Life Committee, Inc.
v. Sorell in the United States District Court for
the District of Vermont. The complaint and
preliminary-injunction brief are at
www.jamesmadisoncenter.org.
James Bopp, Jr. has a national constitutional law
practice with the law firm of Bopp, Coleson & Bostrom.
PRESS RELEASE
August 18, 2009
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685;
jboppjr@aol.com
Petition for Full Court Rehearing Filed in Real Truth
About Obama v. FEC
Yesterday, The Real Truth About Obama (“RTAO”) asked the full Fourth
Circuit to rehear an appeal after a three-judge panel of the Court
upheld the denial of a preliminary injunction that would have
permitted RTAO to engage in planned issue advocacy.
The case began in July 2008, when a group of citizens formed RTAO
because they wanted to provide accurate and useful information about
the public policy positions of then-candidate Barack Obama. An ad
that RTAO wanted to broadcast, entitled Change, explained
his positions related to the abortion issue. It was issue advocacy
because it discussed public issues but did not expressly advocate
the election or defeat of any candidate. RTAO also planned a website
and had a solicitation letter it wanted to distribute to raise money
for its planned issue advocacy.
However, if RTAO had proceeded, it was in danger of an enforcement
action and civil and criminal penalties because the FEC had three
rules that would have put RTAO at risk for noncompliance as to its
planned communications. These rules defined regulable “express
advocacy,” “electioneering communications,” and “contributions” in
ways that RTAO thought inconsistent with United States Supreme Court
and Fourth Circuit precedents (RTAO was in Virginia and so in the
Fourth Circuit). RTAO was also at risk for being in violation of an
FEC enforcement policy for identifying groups on which to impose the
burdens of “political committee” status. Again, RTAO believed the
policy to be in violation of Supreme Court and Fourth Circuit
precedent.
So RTAO filed a constitutional challenge to the three rules and the
policy in RTAO v. FEC. In order to speak while the prolife
issue was a matter of hot public debate, RTAO asked for a
preliminary injunction to protect its speech. The district court
denied the motion, holding that RTAO was unlikely to be able to show
that it would win on its constitutional challenge, and so it did not
meet the other requirements for a preliminary injunction, such as
irreparable harm.
As to the likely constitutionality of the challenged provisions,
RTAO had argued that they were inconsistent with the Fourth
Circuit’s decision in North Carolina Right to Life v. Leake
(2008) and Supreme Court decisions interpreted and applied in
Leake.
In Leake, the Fourth Circuit recognized the constitutional
principle that campaign-finance laws may only regulate First
Amendment activity that is “unambiguously campaign related,” and
that this principle is implemented by bright-line, speech-protective
tests. This principle was first set out by the United States Supreme
Court in Buckley v. Valeo (1976), where the Court applied
the principle to limit the scope of regulable “expenditures,”
“contributions,” and “political committees” (“PACs”). The Court
applied the unambiguously-campaign-related principle as a threshold
requirement before engaging in the applicable constitutional
scrutiny.
As to communications, Leake recognized that under this
principle only two types may be regulated in the campaign-finance
context: (1) express advocacy of the election or defeat of a clearly
identified candidate and (2) “electioneering communications”
(broadcast ads identifying candidates near elections) that can only
be interpreted as containing an “appeal to vote.”
As to PAC status, Leake held that it could only be imposed
on groups having the major purpose of nominating or electing
candidates and that “the major purpose” “is best understood as an
empirical judgment as to whether an organization primarily engages
in regulable, election-related speech.”
The district court rejected the unambiguously-campaign-related
analysis, along with the interpretation of what may be considered a
“contribution” that it mandates. It said that RTAO was unlikely to
succeed on its challenge to regulation of communications that did
not comply with the two types that Leake said were
regulable. And it said that RTAO was unlikely to succeed on its
challenge to the FEC’s PAC-status enforcement policy that differed
from Leake’s holding as to what is required to impose PAC
status.
RTAO appealed the denial, seeking to obtain protection for its
planned activity while the issue was still in public debate. RTAO
explained to the Fourth Circuit three-judge panel that the district
court opinion was inconsistent with controlling precedents and that
it had ignored the First Amendment context in applying the
preliminary-injunction standards. It also asked the Fourth Circuit
to clarify that speech-protective standards are required in
free-speech cases.
RTAO did not get timely relief from the Fourth Circuit panel
enabling it to speak when the issue was hot. A decision affirming
the district court’s denial of preliminary injunction was issued on
August 5, 2009. The panel held that RTAO was unlikely to be able to
show that the challenged provisions were unconstitutional and so it
was also unlikely to be able to show irreparable harm (i.e., if the
challenged provisions were likely constitutional then RTAO would not
be harmed by simply complying with them). The Court also applied a
very strict standard for preliminary injunctions that it held was
required by a recent Supreme Court decision on the subject.
As a result, RTAO has now asked the full Fourth Circuit to
rehear the case and reverse the district court decision. In its
petition, RTAO argued that the panel decision was wrong as to (1)
whether the challenged provisions were likely unconstitutional,
especially because it did not follow the Fourth Circuit’s Leake
decision, and (2) as to the high preliminary injunction standard
that it imposed in this First Amendment context. RTAO asked the full
Fourth Circuit to take this opportunity to clearly mandate
speech-protective preliminary injunction standards for First
Amendment cases.
James Bopp, Jr., counsel for RTAO, makes the following statement
concerning the case: “The Fourth Circuit in North Carolina Right
to Life v. Leake set out a clear constitutional analysis that
brought order to much of the chaos in campaign-finance law. By not
following this binding precedent, the appellate panel in the present
case created confusion and chilled free political speech. The full
Fourth Circuit should rehear this appeal to remove the confusion,
protect free speech, and comply with binding United States Supreme
Court precedent.”
PRESS
RELEASE
Wednesday, July
29,
2009
Contact:
James Bopp, Jr.
Phone 812/232-2434;
Fax 812/235-3685;
jboppjr@aol.com
Court Enters Temporary Restraining Order Preventing the
Secretary of State from Releasing Copies of the Referendum 71
Petition;
Wants to Hear Protect Marriage Washington’s Case
At a hearing on July 29, 2009, a United States District Court Judge
entered an order preventing the Washington Secretary of State from
publicly releasing copies of the Referendum 71 petition filed on
Saturday. The order will remain in effect, granting temporary relief
to more than 138,500 petition signers, pending a hearing scheduled
for September 3, 2009 on the Plaintiffs’ request for a more
permanent ruling.
James Bopp, Jr., lead counsel for the Plaintiffs stated, “This is a
sign that the Judge is taking this matter very seriously.
Individuals must be allowed to debate the merits of Referendum 71
without having to worry about whether they will be harassed for
offering an opinion.”
Larry Stickney, Campaign Manager for Protect Marriage Washington
added, “Obviously we are pleased with the Court’s ruling today and
are hopeful that the Court will enter a more permanent injunction.”
Protect Marriage Washington and two petitioner signers filed suit on
Tuesday against the Washington Secretary of State to prevent the
public release of the Referendum 71 petition. Two groups had
threatened to publish the names and addresses of the petition
signers in an attempt to intimidate individuals who signed the
petition.
Meanwhile, the Secretary of State continues the signature
verification process. If Protect Marriage Washington submitted a
sufficient number of valid signatures, the law commonly referred to
as the “everything but marriage” domestic partnership law would not
become effective unless a majority of Washington citizens voted to
“affirm” the legislation.
Bopp added, “This ruling should provide some comfort to those who
have signed the petition and were worried about being harassed. We
will continue fighting for the right of all citizens to speak
freely, and hope that the Court will provide further, permanent
relief to those who signed the petition.”
The case is before the Honorable Judge Benjamin H. Settle in the
United States District Court for the Western District of Washington,
at Tacoma. The case number is 3:09-cv-05456-BHS. Attorney Stephen
Pidgeon (Bellevue, WA), an Alliance Defense Fund Allied Attorney, is
serving as local counsel in the case.
James Bopp, Jr. has a national federal and state election law
practice. He is General Counsel for the James Madison Center for
Free Speech and former Co-Chairman of the Election Law Subcommittee
of the Federalist Society.
PRESS
RELEASE
Wednesday, July
29,
2009
Contact:
James Bopp, Jr.
Phone 812/232-2434;
Fax 812/235-3685;
jboppjr@aol.com
Former FEC Chairmen and Commissioners Call for Reversal of
Two Supreme Court Cases Restricting Citizen Speech
Late yesterday, eight former commissioners (seven served as
chairmen) of the Federal Election Commission filed a
friend-of-the-court brief in Citizens United v. FEC calling
for the overruling of two Supreme Court decisions that have chilled
public speech by imposing complex and burdensome layers of
regulations.
As the former commissioners’ brief noted: “[T]he field is so
complex that citizens cannot understand it and experts find it
difficult. The pristine simplicity of the First Amendment’s
proscription of any law . . . is replaced by a flood of complex
regulations. The complexity requires citizens to hire specialists to
speak. Specialists cost money. Errors risk penalties. Core political
activity is chilled.”
The case involves a challenge to a federal law prohibiting the
broadcast of a documentary, Hillary: The Movie. In an
unusual move, the U.S. Supreme Court ordered supplemental briefing
on whether two of its decisions should be overruled. One is
McConnell v. FEC, which facially upheld the prohibition in
McCain-Feingold (the Bipartisan Campaign Reform Act) on corporate
“electioneering communications” (broadcast ads mentioning federal
candidates near elections). The other is Austin v. Michigan
State Chamber of Commerce, which held that corporations could
be prohibited from political activity.
The former commissioners speak from long years of experience in
interpreting federal election laws, implementing regulations,
devising enforcement policy, and investigating violations. They
submitted the brief to advise the Court of the complexities and
difficulties in the practical application of federal
campaign-finance laws and the First Amendment to political speech
and activity. And they highlighted how complex and confusing the
federal regulatory scheme has become for citizens, and even
specialists, and what a burden that fact imposes on participation in
American political debate and elections, which are at the heart of
the Republic.
Former Commissioner Hans A. von Spakovsky comments: “It is high
time for the Supreme Court to overturn two bad decisions that
fundamentally violate our First Amendment rights -- pornographers
have greater freedom than those engaging in political speech. Giving
government bureaucrats at the FEC the power to decide what can be
said in political campaigns is one of the most constitutionally
questionable enactments since Congress passed the Alien and Sedition
Acts in 1798.”
Although the First Amendment mandates that “Congress shall make no
law . . . abridging the freedom of speech,” the Austin case
(based on a level-the-playing-field principle expressly rejected in
two other decisions) spawned complex multi-factor tests for
restricting different types of entities and speech. The brief noted
that there are now unique and complex rules imposed by the Federal
Election Campaign Act (“FECA”) on 71 distinct entities, much of it
justified by Austin. FECA also uniquely regulates 33
different forms of speech. Furthermore, while corporations are
prohibited from political activity, there are exemptions for media
corporations, MCFL-corporations, and membership
organization, each with complex sets of rules.
However, whenever a corporation is allowed to speak it must take
special care not to fall into “political committee” (“PAC”) status,
which imposes additional layers of complex rules and carries with it
onerous burdens of compliance. In fact, PAC status is so difficult
and onerous that, while there are 5.8 million active corporations,
there are fewer than 2000 corporate PACs. And the burdens of PAC
status fall disproportionately on small corporations because large
corporations can more readily bear the cost and burden. So the ban
on corporate political activity has had the perverse result of
silencing small corporations, not the behemoths usually cited as the
source of concern. And some groups, such as the ACLU, cannot even
have a PAC, so they are silenced altogether.
Former Commissioner and Chairman David Mason states the problem as
follows: “For ten years I wrestled with a law that became ever more
complex, more laden with exceptions, more difficult to apply, and
less fair. Rather than crafting yet another exception, the Court
should simply recognize the equal First Amendment rights of all
speakers.”
The brief notes that the FECA is 244 pages, and the FEC regulations
interpreting FECA add an additional 568 pages. There have been 17
“major” and 366 other cases challenging FECA and FEC regulations,
with 17 yet unresolved. The FEC has filled 1,278 pages of the
Federal Register with explanations and justifications for its
regulations, along with 10 policy statements, 1 interpretive rule,
and 1,771 advisory opinions since 1975, with 9 more pending. The FEC
has published 17 reporting forms, each with instructions, 6 campaign
guides, 24 brochures, and 163 monthly issues of The Record,
beginning in 1996. The FEC has numerous audit reports for review,
and over 6,000 Matters Under Review, which involve resolved FEC
complaints.
Former Commissioner and Chairman Bradley Smith says: “We think it
is important that the Court grasp the complexity of the law and the
enormous practical burden it places on those who would speak about
politics. As a result, many don’t speak at all, and our society is
poorer for it. We hope that as former commissioners, we can assist
the Court to understand the scope of the law and the difficulty, if
not impossibility, of administering it in a manner consistent with a
robust First Amendment.”
The former commissioners explained that decisions built on Austin,
namely, McConnell v. FEC, and FEC v. Wisconsin Right to
Life, had proven unworkable. As to the “appeal to vote” test in
Wisconsin Right to Life, intended to narrow the scope of
regulable “electioneering communications,” the former commissioners
noted that current commissioners disagree over its application, that
the FEC has been unable to quickly determine whether the test
applies or not, and that the FEC and a federal court have even
disagreed over whether an ad is prohibited. The former
commissioners concluded that, given the complexity and
unworkability of the current regime, that political speech was being
chilled and the decisions causing these problems must be overruled.
James Bopp, Jr., counsel of record for the commissioners, added:
“The First Amendment mandated that ‘Congress . . . make no law . . .
abridging freedom of speech.’ There was profound wisdom in that
pristine statement that America must return to. While a few
exceptions to ‘no law’ were made initially for exigent
circumstances, the flood of regulation which these exceptions have
spawned has made current federal campaign finance law the antithesis
of ‘Congress shall make no law.’ Austin and McConnell must
yield to the need of the American people for wide-open, robust
debate about our government.”
The amici curiae (with FEC years and current affiliation indicated)
are Joan Aikens (1975-1998, retired); Lee
Ann Elliott (1982-2000, retired); Thomas Josefiak
(1985-1991, Partner, HoltzmanVogel); David Mason
(1998-2008, Visiting Senior Fellow, Heritage Foundation);
Bradley Smith (2000-2005, Blackmore/Nault Designated
Professor of Law, Capital University); Michael Toner
(2002-2007, head of Election Law and Government Ethics Practice
Group, Bryan Cave); Hans von Spakovsky (2006-2007,
Visiting Legal Scholar, Heritage Foundation); and Darryl
Wold (1998-2002, private law practice emphasizing election
and political law). All chaired the FEC during their tenure except
for Commissioner von Spakovsky.
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.
PRESS
RELEASE
Wednesday, July
29,
2009
Contact:
James Bopp, Jr.
Phone 812/232-2434;
Fax 812/235-3685;
jboppjr@aol.com
Protect
Marriage
Washington
Files
Suit to
Prevent
138,500
Names
from
Being
Posted
Online
By Foes
of
Traditional
Marriage
On July
28,
2009,
Protect
Marriage
Washington
and two
petitioner
signers
filed
suit
against
the
Washington
Secretary
of State
to
prevent
the
Secretary
of State
from
releasing
the
names
and
addresses
of over
138,500
Washington
citizens
who
stood up
in
defense
of
marriage
by
signing
a
referendum
to put
the
domestic
partnership
law on
the
ballot.
On
Saturday,
July 25,
Protect
Marriage
Washington
submitted
a
petition
containing
the
signatures
in an
effort
to place
a
referendum
question
on the
November
2009
ballot
regarding
what is
commonly
referred
to as
the
“everything
but
marriage”
domestic
partnership
law. If
the
Secretary
of State
certifies
the
petition,
the law
would
not
become
effective
unless a
majority
of
Washington
citizens
voted to
“affirm”
the act
of the
state
legislature.
Opponents
have now
threatened
to
obtain
copies
of the
petition,
which
contain
the name
and
address
of each
petition
signer,
in an
effort
to make
them
available
on the
internet.
The
clear
goal of
this
effort
is to
intimidate
and
harass
supporters
of a
traditional
definition
of
marriage,
an
increasingly
common
tactic
among
opponents
of
traditional
marriage.
Protect
Marriage
Washington
has
asked
the
Court to
immediately
stop the
Secretary
of State
from
releasing
the
names
until
the
Court
can hold
a
hearing
on
whether
the
names
should
ever be
released.
“The
State
cannot
allow
the
release
of the
names on
the
Referendum
71
petition
when the
purpose
is to
harass
and
intimidate
people
who are
merely
exercising
their
right to
speak,”
said
James
Bopp,
Jr.,
lead
counsel
in the
case.
Larry
Stickney,
Campaign
Manager
for
Protect
Marriage
Washington
said
that “No
petition
signer
should
have to
endure
the
threats
and
harassment
I
endured
while
circulating
the
petition.”
Bopp
added.
“It is
clear
that the
individuals
who
signed
the
petition
will be
harassed
if the
Secretary
of State
releases
the
names.
The
Court
can
prevent
this
harassment
by
preventing
the
Secretary
of State
from
releasing
the
names.”
The case
is
before
the
Honorable
Judge
Benjamin
H.
Settle,
in the
United
States
District
Court
for the
Western
District
of
Washington,
in
Tacoma.
The case
number
is
3:09-cv-0546-BHS.
Attorney
Stephen
Pidgeon
(Bellevue,
WA), an
Alliance
Defense
Fund
Allied
Attorney,
is
serving
as local
counsel
in the
case.
James
Bopp,
Jr. has
a
national
federal
and
state
election
law
practice.
He is
General
Counsel
for the
James
Madison
Center
for Free
Speech
and
former
Co-Chairman
of the
Election
Law
Subcommittee
of the
Federalist
Society.
PRESS
RELEASE
Thursday, July 2,
2009
Contact:
James Bopp, Jr.
Phone 812/232-2434;
Fax 812/235-3685;
jboppjr@aol.com
Alaska Voters and
Candidate Challenge
Process for
Selecting State
Judges
Two Alaska voters
and one past
judicial candidate
filed suit today in
federal court to
stop the current
plan for selecting
state judges in
Alaska. The current
plan denies ordinary
Alaska voters an
equal voice in
selecting their
judges.
In Alaska, a seven
member group called
the Judicial Council
limits nominees
forwarded to the
Governor for open
seats on Alaska’s
courts. Governor
Palin is then forced
to choose one of
them, regardless of
differences of views
on legal matters.
Since all nominees
allowed to move
forward by the
Judicial Council may
be diametrically
opposed to the
Governor, the
Judicial Council,
and not the people,
has complete control
over who becomes a
judge in Alaska. The
Judicial Council
makeup, with three
lawyers selected
only from and by the
Bar Association,
guarantees lawyers
have a greater say
than ordinary
citizens in Alaska
in selecting judges
who have great power
and control over the
lives of regular
citizens. The suit
asks the court to
put an end to this
inequality and give
all Alaska voters an
equal voice.
The case arises out
of the upcoming
retirement of
Justice Robert L.
Eastaugh from the
Alaska Supreme
Court. His
retirement will
create a vacancy on
November 2, 2009.
The plaintiffs want
the court to stop
the three lawyer
Council members from
selecting the
nominees for that
vacancy. If
successful, when
Governor Palin has
to make her choice
to fill the spot,
the names in front
of her will be
picked by a Council
that represents
equally all the
people of Alaska.
Incidentally, the
Alaska Bar Rag,
published by the
Alaska Bar
Association, has
recently featured
editorials
expressing concern
over the flaws in
the judicial
selection process.
According to
attorney James Bopp,
Jr., lead counsel
for the plaintiffs,
the Alaska plan
“gives the Alaska
Bar Association a
stranglehold on the
judiciary. Lawyers
in Alaska have
enormous influence
over who the state
judges are, while
the ordinary voter
is denied the right
to an equal voice.”
The system needs to
be corrected now,
before Governor
Palin is forced to
put another justice
on the Supreme Court
through an unjust
process.
The case is
Hinger v. Carpeneti,
et al., No. (D.
Alaska July 2,
2008). The complaint
and memorandum
supporting the
motion for a
preliminary
injunction are
available in PDF
format online at the
James Madison
Center’s website,
www.jamesmadisoncenter.org,
under the “Alaska
Judicial Selection
Challenge” link on
Thursday, July 2,
2009.
James Bopp, Jr.
has a national
federal and state
election law
practice. He is
General Counsel for
the James Madison
Center for Free
Speech and former
Co-Chairman of the
Election Law
Subcommittee of the
Federalist Society.
PRESS RELEASE
June 3, 2009
Contact: James Bopp,
Jr.
Phone: 812/232-2434; Fax:
812/235-3685;
jboppjr@aol.com
ProtectMarriage.com and
National Organization for
Marriage
Ask Court to Rule in Their Favor
on Proposition 8 Case
Today, ProtectMarriage.com and
National Organization for
Marriage asked the Court to make
a decision on their case
involving the free speech rights
of citizens who supported
Proposition 8 in California.
Proposition 8 added an amendment
to the California Constitution
defining marriage as between one
man and one woman.
ProtectMarriage.com and National
Organization for Marriage are
asking the Court to grant their
motion for summary judgment,
which asks the Court to find in
their favor on all of the claims
in their lawsuit. If
successful, California will have
to remove the names of donors
who gave as little as $100 to
the recent campaign for
Proposition 8 from the state
website, among other things.
Since filing for a preliminary
injunction, ProtectMarriage.com
and National Organization for
Marriage have submitted nearly
fifty new statements to the
Court, from people who have
experienced harassment because
of their support for Proposition
8. “The Court wanted to see
more evidence of harassment,
threats, and reprisals that
occurred to people who supported
Proposition 8, so we have given
that to the Court,” said James
Bopp, Jr., lead counsel in the
case.
“The First Amendment guarantees
citizens the right to have their
political voices heard, but the
threats, harassment, and
reprisals that people who
supported Proposition 8 have
suffered because of their
support destroys that right,”
Bopp added. “This summary
judgment filing makes it clear
that the harassment of people
who supported Proposition 8 is
ongoing, and the Court has the
ability to stop such harassment
from happening.”
If you have been the victim of
threats, harassment, or
reprisals of any kind, please
contact Sarah Troupis at
stroupis@bopplaw.com to find
out more information on the
case, and how you can help
ensure the protection of you
First Amendment rights.
The case is before the Honorable
Judge Morrison C. England, in
the United States District Court
for the Eastern District of
California, in Sacramento. The
case number is
2:09-CV-00058-MCE-DAD.
James Bopp, Jr. has a
national federal and state
election law practice. He is
General Counsel for the James
Madison Center for Free Speech
and former Co-Chairman of the
Election Law Subcommittee of the
Federalist Society.
PRESS RELEASE
Monday, April 6, 2009
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685
jboppjr@aol.com
James Madison Center for Free Speech
Challenges IRS Regulation of Non-Profit
Political Speech
The James Madison Center filed two federal
lawsuits on Friday, April 3, 2009, to
challenge the IRS definition of "political
intervention," which has been used by the
IRS to stifle the legitimate speech
activities of many non-profit organizations.
For decades the IRS has applied an "all the
facts and circumstances" test to the grass
roots lobbying, issue advocacy and voter
education activity of non-profits to
determine if the non-profit has actually
engaged in prohibited political activity.
Furthermore, this vague IRS test has been
exploited by some liberal groups to threaten
and harass churches and other non-profits,
causing many of them to be fearful of IRS
retribution if they discussed moral or
public policy issues. Non-profits have even
shied away from legitimate grass roots
lobbying activity in fear that it will be
considered political intervention. As a
result, the legitimate speech activities of
many non-profits have been chilled and their
free speech rights infringed.
In Catholic Answers and Karl Keating vs.
USA, the IRS determined that two
"E-letters" posted in 2004 by the President
of Catholic Answers, Karl Keating, on his
blog on the Catholic Answers website arguing
that John Kerry should not receive Holy
Communion, because of his pro-abortion
position, were "political expenditures" that
might influence the 2004 presidential
election. The IRS assessed a tax on Catholic
Answers, a 501(c)(3) charity, for these blog
entries and required that Keating reimburse
Catholic Answers $900 for the expenditures
incurred for these E-letters. Catholic
Answers is demanding that the courts find
that a discussion by a Catholic group about
who should receive Holy Communion is not
properly considered "political
intervention," allowing them to reimburse
Keating his $900.
In Christian Coalition of Florida vs.
USA, the Christian Coalition of Florida
(CC-FL) was denied its 501(c)(4) status by
the IRS because the IRS claimed that its
newsletters, voter guides, and legislative
scorecards constituted political
intervention and that these activities meant
that CC-FL’s "primary activity" was
political intervention. CC-FL claims,
however, that their newsletters, voter
guides and legislative scorecards are
educational in that they provide members
with information about candidates and
legislators on a variety of issues and do
not expressly advocate the election or
defeat of any candidate. Furthermore, CC-FL
argues that these activities, even if
considered political intervention, were not
extensive enough to be the "primary
activity" of CC-FL.
In both cases, the Madison Center is also
claiming that the IRS rules and regulations
are vague and overbroad and, as a result,
chill the First Amendment free speech rights
of non-profits. The suits ask that the
IRS’s rules and regulations on "political
intervention," and its "facts and
circumstances" test, be struck down or
narrowly construed to only encompass speech
which expressly advocates the election or
defeat of a clearly identified candidate.
James Bopp, Jr., General Counsel for the
Madison Center and counsel for Catholic
Answers and CC-FL, said that "The IRS’s ex
post facto determination of what constitutes
political intervention, based on ‘all the
facts and circumstances,’ creates a
regulatory minefield for non-profits, which
is virtually impossible for them to navigate
without completely foregoing any activity
that mentions public officials and
candidates during election years. This
self-censorship of protected speech violates
the non-profit's First Amendment rights."
Catholic Answers and Karl Keating vs.
USA was filed in the U.S. District
Court for the Southern District of
California, San Diego Division, Cause No.
09-CV-0670-IEG-AJB and
Christian
Coalition of Florida vs. United States of
America was filed in the U.S. District
Court of the Middle District of Florida,
Ocala Division, Cause No.
5:09-CV-144-OC-10GRJ. The complaints are
posted at
www.jamesmadisoncenter.org.
James Bopp. Jr., has a national federal
and state campaign finance and non-profit
tax law practice with Bopp, Coleson &
Bostrom in Terre Haute, IN. He is General
Counsel for the James Madison Center for
Free Speech and former Co-Chairman of the
Election Law Subcommittee of the Federalist
Society.
PRESS RELEASE
March 17, 2009
Contact: James Bopp, Jr.
Phone: 812-232-2434; Fax 812-235-3685
jboppjr@aol.com
Whitewater Wisconsin Restrictions on
Referendum Communications Declared Unconstitutional
At this time last year, John Swaffer, Jr. and Michael
Rasmussen wanted to send out post cards and distribute
yard signs urging residents of Whitewater, Wisconsin, to
vote against a local referendum that would have
overturned the town’s ordinance against liquor sales.
But under Wisconsin law, the cards and signs would have
to include a disclaimer, and because they would have
cost more than $25, Mr. Swaffer and Mr. Rasmussen would
have to register with the State as political committees,
maintain a separate bank account, keep detailed
financial records for three years and file reports with
the state. Attorneys at Bopp, Coleson & Bostrom filed
suit in federal court, and won a preliminary injunction
allowing the two to send the postcards and distribute
the yard signs without the disclaimer or forming a
political committee. The court has now issued its
judgment in the case, and declared the Wisconsin laws
unconstitutional.
The court ruled that the registration, recordkeeping and
reporting requirements "act to inhibit the open exchange
of ideas and political conversations on referendum
issues," where "‘the direct participation of the
people’" is most important. Furthermore, the court found
the disclaimer requirement to be a broad prohibition of
anonymous political speech that "run[s] afoul of the
First Amendment" under the Supreme Court’s 1995 decision
in McIntyre v. Ohio Elections Commission.
"The court recognized the Wisconsin laws as classic
examples of overreaching campaign finance laws," says
James Bopp, Jr., lead counsel for the plaintiffs.
"Government is not free to regulate every citizen who
wants to send post cards or put up yard signs concerning
a referendum—such activities are at the core of the
First Amendment."
The case is titled
Swaffer v. Deininger et.al.,
08-C0208, and a copy of the court’s order is available
at the James Madison Center’s website
www.jamesmadisoncenter.org.
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.
PRESS RELEASE
Wednesday, February 18, 2009
Contact: James Bopp, Jr.
Phone 812/243-0825; Fax 812/235-3685;
jboppjr@aol.com
Judge Wins Right to Join Democratic Party
Federal District Court Judge
Barbara Crabb has granted a permanent injunction against provisions
of the Wisconsin Code of Judicial Conduct that prohibited state
court judicial candidates from belonging to a political party, as
well as from personally soliciting campaign contributions and
publicly endorsing political candidates.
The Plaintiff in the case,
Milwaukee County Circuit Judge John Siefert, had sought the right to
join the Democratic party, endorse then Presidential candidate
Barack Obama, and personally solicit campaign contributions. Each of
these activities, however, was prohibited by the Wisconsin Code of
Judicial Conduct. In March of 2008, Siefert brought suit in federal
court, arguing that the restrictions violated his First Amendment
rights. The District Court agreed, finding that allowing voters to
have "more rather than less information advances democratic values."
James Bopp, Jr., lead counsel for
the plaintiffs, praised Judge Crabb’s decision. "The U.S. Supreme
Court that said judicial candidates have full First Amendment
protection for their political speech. Stating a party preference is
just a shorthand for announcing your political views, and Judge
Crabb rightly found that this was protected political speech."
The case is Siefert v.
Alexander, et al., 3:08-cv-126. Copies of the pleadings and the
Court’s order are available in PDF format online at the James
Madison Center’s website, www.jamesmadisoncenter.org, under the "Judicial Accountability Project" link.
Bopp, an expert in campaign regulations, successfully argued a case
in 2007 challenging separate provisions of Wisconsin’s Code of
Judicial Conduct, as well as the 2002 U.S. Supreme Court case
Republican Party of Minnesota v. White, 536 U.S. 765 (2002),
which forms the basis for this action.
James Bopp, Jr. has a national
federal and state election law practice. He is General Counsel for
the James Madison Center for Free Speech and Co-Chairman of the
Election Law Subcommittee of the Federalist Society.
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