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.

PRESS RELEASE 
Wednesday February 4, 2009
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

 
James Madison Center for Free Speech Files Amicus Curiae Brief in Judge Recusal Case
 
Today, the James Madison Center for Free Speech filed a U.S. Supreme Court amicus curiae brief in support of Massey Coal Company in the case of Caperton v. Massey, 08-22. The case involves the decision of Justice Brent Benjamin of the West Virginia Supreme Court of Appeals not to recuse himself based on the fact that Don Blankenship, the CEO and President of Massey Coal, had spent a significant amount during the 2004 elections against Benjamin’s opponent, then West Virginia Supreme Court of Appeals Justice Warren McGraw. After Justice Benjamin cast the deciding vote in favor of Massey Coal, Caperton appealed, claiming that the Due Process Clause of the U.S. Constitution required the judge’s recusal. 
 
"Requiring judges to recuse themselves based on campaign spending would have profound and disturbing implications for the U.S. judicial process," said James Bopp, Jr., counsel for the James Madison Center. "Judicial elections have been a part of the American judicial system since 1789. They’ve always involved private campaign spending, and it’s never been the case that judges had to recuse themselves because a party has donated to their campaign or spent money trying to defeat their opponent." Bopp stated that efforts to require recusal based on campaign spending were really an attempt to subvert this long history of judicial elections. "If someone wants to manipulate justice, mandatory recusal based on campaign spending makes it easy to do so. All a party has to do is donate to judges they don’t think are favorable to them, and they can ensure that judge will never hear their case. Effectively, this is little more than an attempt to second guess the voters’ decision and undermine the existence of judicial elections."
 
The James Madison Center for Free Speech is a nonprofit nonpartisan organization dedicated to supporting litigation and public education activities to defend the First Amendment rights of citizens and citizen groups to free political expression and association. Named for James Madison, the author and principal sponsor of the First Amendment, the Madison Center is guided by Madison’s belief that "the right of free discussion . . . [is] a fundamental principle of the American form of government."
 
The amicus brief can be found at www.jamesmadisoncenter.org.
 
James Bopp, Jr. has a national federal and state election law practice with the Terre Haute, Indiana law firm of Bopp, Coleson & Bostrom. 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, January 15, 2009
Contact: James Bopp, Jr.
Phone: 812/232-2434; Fax: 812/235-3685; jboppjr@aol.com

Brief Filed in California Supreme Court to Support Proposition 8

Today, Catholic Answers Action filed a brief in the matter of Strauss v. Horton, currently before the California Supreme Court, supporting an amendment to the California Constitution that defines marriage as a relationship between one man and one woman.

In November, over seven million Californians approved Proposition 8, a ballot measure that defines marriage as a relationship between one man and one woman. After the approval of Proposition 8, several groups that oppose amending the California Constitution brought this lawsuit. Catholic Answers Action filed this amicus, or "friend of court," brief in support of Proposition 8.

The California Supreme Court asked for briefs discussing why Proposition 8 is a proper amendment to the California Constitution, and not an impermissible revision to the Constitution. Catholic Answers Action’s brief argues that Proposition 8 is a proper amendment to the California Constitution, and that the effects of Proposition 8 will have little or no effect on equal protection under the California Constitution for several reasons. It argues that marriage has historically been defined as a relationship between one man and one woman, and that defining marriage as a relationship between one man and one woman will allow California courts to apply equal protection consistently and predictably. It also demonstrates that the Proposition 8 definition of marriage provides equal protection to all men and all women, and that defining marriage as a relationship between one man and one woman does not affect equal protection outside of marriage. Catholic Answers Action also emphasizes that Proposition 8 is distinct from prior laws that prevented marriage between people of different races.

James Bopp Jr., lead counsel for Catholic Answers Action, said that "California voters have expressed their will to amend the California Constitution by defining marriage as a relationship between one man and one woman. This lawsuit seeks to undermine the desire of Californians to have marriage defined in the way it has been defined throughout history." Says Bopp, "All Californians will get equal protection of the laws with the passage of Proposition 8."

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 
January 14, 2009
 Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

 
Amicus Curiae Brief Filed in Citizens United Case
 
Today, the law firm of Bopp, Coleson & Bostrom filed an amicus curiae brief in the U.S. Supreme Court case of Citizens United v. FEC on behalf of the Center for Truth in Politics, Inc. The Court accepted four questions for briefing and oral argument. The brief addresses the two that focus on a unifying principle of campaign-finance law identified and developed by the law firm. The analysis has been adopted by lower federal courts, most notably North Carolina Right to Life v. Leake (4th Cir. 2008), in which James Bopp, Jr. was lead counsel for North Carolina Right to Life. Bopp was also lead counsel for Wisconsin Right to Life in FEC v. Wisconsin Right to Life ("WRTL II"), the predecessor for the present case.
 
In Part I, the brief addresses the constitutional first principle that campaign-finance laws may only regulate First Amendment activity that is unambiguously campaign related. This was clearly established in Buckley v. Valeo (1976), where the Court applied the principle both to the reporting of expenditures for communications and to other forms of regulation. As to expenditure reporting, Buckley required that it only reach "spending that is unambiguously related to the campaign of a particular federal candidate." This required that "expenditure" be construed "to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate." This limitation was necessary so that "the relation of the information sought to the purposes of the Act [would not] be too remote" and "[t]o insure that the reach of [the reporting requirement] [wa]s not impermissibly broad." This conforms to Buckley’s identification of the congressional authority for campaign-finance regulations as the authority to regulate elections.
 
The express-advocacy test, then, was a test implementing the unambiguously-campaign-related principle. And the Court applied the unambiguously-campaign-related principle as a threshold requirement before engaging in exacting scrutiny. Consequently, even outside the express-advocacy context, the unambiguously-campaign-related requirement must still be applied with an appropriate test as a threshold requirement before applying the appropriate level of scrutiny.
 
Since the unambiguously-campaign-related principles clearly applies to expenditure reporting, it must also apply to the electioneering-communication disclosure (disclaimers, reporting, and donor disclosure) at issue in Citizens United. In the electioneering-communication context, the test that implements the unambiguously-campaign-related principle is WRTL II’s "appeal to vote" test. So that test establishes that communications that "may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate" are not unambiguously campaign related and may neither be prohibited nor otherwise regulated. Since Citizens United’s ads and movie contained no "appeal to vote," they may not be subjected to the electioneering-communication disclosure requirements. And because the electioneering-communication disclosure requirements fail the threshold test, there is no need for further analysis before holding them unconstitutional as applied.
 
In Part II, the brief addresses a corollary of the unambiguously-campaign-related principle, i.e., that the appeal-to-vote test requires that a communication may not be considered as an unmistakable "appeal to vote" unless it contains a clear plea for action urging a vote. There can be no appeal absent some clear plea or command for the hearer to do some action. And there can be no appeal to vote unless the action urged is voting for or against a candidate. This clear plea for action urging a vote cannot be satisfied by mere criticism of a candidate, an argument that was made and rejected in WRTL II when it established instead the appeal-to-vote test. Since the movie at issue contained no such clear plea for action urging a vote, it was subject neither to prohibition nor regulation as an electioneering communication. And because the movie readily survives the appeal-to-vote test, there is no reason for further analysis before holding the prohibition unconstitutional as applied to it.
 
James Bopp, Jr., counsel for CTP, makes the following statement concerning the case: "The unambiguously-campaign-related principle is a threshold requirement unifying all of campaign-finance law involving First Amendment rights. By it, the Supreme Court guards the people’s self-government right to associate and speak, safe from incumbent politicians who dislike criticism and would silence it if permitted. The Court has the opportunity in this case to reaffirm its historic recognition that the people are sovereign and require broad protection for their liberty to engage in political speech."
 
The brief is available at www.jamesmadisoncenter.org under "Citizens United’s McCain-Feingold Challenge."
 

PRESS RELEASE 
Tuesday, December 2, 2008
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

 
Kansas District Court Finds Judges May Solicit Money
 
 On Monday, November 24, the United States District Court for the District of Kansas held unconstitutional provisions of the Kansas Code of Judicial Conduct banning judicial candidates from personally soliciting campaign contributions on their own behalf.
 
 Eric Yost, a state district court judge in Sedgwick County, had sought to personally solicit funds for his 2008 re-election campaign. He was prevented from doing so, however, by two canons in the Kansas Code requiring all campaign solicitation to be done through intermediaries, and prohibiting personal solicitation by judges and judicial candidates. On October 31, 2006, Judge Yost brought suit in federal district court, claiming that the provisions violated his First Amendment rights as a candidate.
 
 The District Court agreed, finding that Kansas’s solicitation clauses were unconstitutional and unnecessary restrictions on the ability of Judge Yost and other judicial candidates to secure funding for their campaign, and stating that the provision did not prevent any corrupting influence a contributor might have over a judicial candidate because the candidate could still find out whom his or her supporters were.
 
 The United States Supreme Court has held unconstitutional a Minnesota rule that prohibited judicial candidates from "announc[ing] their views on disputed legal or political issues." Since then, federal courts of appeals have found other provisions, such as the solicitation clauses, unconstitutional, using the Supreme Court’s rationale.
 
 James Bopp, Jr., lead counsel for Judge Yost, believes a great victory has been won for Kansas judicial candidates: "Raising funds is an ordinary and necessary part of any election campaign, and judicial candidates have the right to personally solicit funds for their campaigns for office." Mr. Bopp successfully argued the case challenging the Minnesota judicial rule struck down by the U.S. Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002).
 
 The case is Yost v. Stout, et al., Civil Action Number 5:06-cv-04122-JAR. The District Court’s 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.
 

Press Release
December 1, 2008
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

 
NRLC Seeks FEC Approval to Reimburse Its PAC for Belatedly-Approved Ad
 
Today, the National Right to Life Committee asked the Federal Election Commission to approve reimbursement to NRLC’s PAC for broadcasting an ad ("Ad") that the FEC has belatedly said NRLC itself could have run.
 
The Ad was about a public debate before the election with then-candidate Obama over who was telling the truth about his voting record in Illinois on an abortion-related issue of concern to NRLC. Obama had publicly said that the NRLC had "lied" about his record, and NRLC wanted to run radio ads defending itself and asking Obama to apologize for this statement. Since the Ad would be an "electioneering communication," which NRLC could be potentially prohibited from making, NRLC submitted an advisory opinion request (AOR 2008-15) before the election asking the FEC to say whether NRLC could broadcast the Ad.
 
The request was sent to the FEC on September 26, 2008, and NRLC asked the FEC to respond within 20 days, in a special expedited procedure available, however, only to federal candidates. The FEC, however,  did not initially consider the matter until its October 23rd meeting, where at least four of the six FEC commissioners (the number required to issue an opinion) thought that at least one version of the Ad could be broadcast by NRLC. But instead of issuing an advisory opinion approving that version of the Ad at that meeting, the FEC adjourned the meeting and didn’t issue an advisory opinion approving the Ad until November 24. As a result, the ad was broadcast by NRLC’s PAC, at an expense of about $69,000 in hard-to-get PAC funds. However, since NRLC was entitled to run the Ad all along, and would have done so but for the FEC’s inexplicable delay in issuing it advisory opinion, NRLC believes that it is entitled to reimburse its PAC for broadcasting the Ad. NRLC has today filed an advisory opinion requesting permission to do so.
 
James Bopp, Jr., general counsel for NRLC, makes the following statement concerning the case: "The FEC’s delay in approving an ad that four Commissioners believed was permissible is baffling. The FEC seems to forget that it is dealing with precious First Amendment rights. Justice requires that at least NRLC be able to reimburse its PAC for running an ad that NRLC had a right to run all along."
 
The first advisory opinion request (along with related documents) is available at www.fec.gov., and the second request should be posted soon.
 

 

 

PRESS RELEASE 
November 14, 2008
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

 
Supreme Court to Review Citizens United’s Hillary: The Movie Case
 
Today the U.S. Supreme Court accepted the case of Citizens United v. FEC for review. The case concerns Citizens United’s desire to broadcast television advertisements for its documentary titled Hillary: The Movie (hillarythemovie.com). Because the ads qualify as "electioneering communications" under McCain-Feingold, Citizens United is required to report its donors and put political disclaimers on the ads. Citizens United objects to these requirements because its advertisements are "political speech" that is fully protected from regulation by the First Amendment under the rationale of the Supreme Court’s decision in FEC v. Wisconsin Right to Life (2007) ("WRTL II").
 
Citizens United also appealed the decision of the U.S. District Court for the District of Columbia that Citizens United could not broadcast the movie itself because it would be a prohibited electioneering communications under WRTL II’s appeal-to-vote test.
 
James Bopp, Jr., counsel for Citizens United makes the following statement concerning the case: "We are pleased that the Supreme Court has recognized that this case raises significant questions about the people’s speech and association rights. These advertisements are protected by the First Amendment and are beyond the legitimate reach of campaign finance laws because, as the FEC agrees, the ads are not unambiguously related to any federal candidates campaign."
 
Furthermore, said Bopp, "the notion that a feature-length movie can be banned is a return to the days of government censorship and book-burnings. This movie has been shown in theaters and is sold on DVD by major national retailers, and it is accompanied by a published compendium book for which royalties were paid to Citizens United. It is not at all the same as the ‘ads’ that the Supreme Court considered in McConnell v. FEC when it facially upheld the prohibition on electioneering communications."
 
Bopp has argued multiple cases before the Supreme Court, including WRTL II, in which the Court limited McCain-Feingold’s prohibition on electioneering communications to only ads which urge a vote for or against a candidates.
 
A copy of the Jurisdictional Statement filed with the Court, along with other case documents, can be found on the website for the James Madison Center for Free Speech at www.jamesmadisoncenter.org.

PRESS RELEASE
November 13, 2008
Contact: James Bopp, Jr.
Ph 812-232-2434; Fax 812-235-3685
jboppjr@aol.com

RNC Files Lawsuits Challenging Constitutionality of
Bipartisan Campaign Reform Act's Ban on National Parties

WASHINGTON – The Republican National Committee (RNC) today announced it will file lawsuits in the District of Columbia and Louisiana challenging, respectively, the constitutionality of the Bipartisan Campaign Reform Act’s ban on national parties raising and spending non-federal dollars, and the constitutionality of political party coordinated expenditure limits.  The RNC does so to defend its interests as a national party committee with varied interests, including both state and federal elections, as well as redistricting and grassroots lobbying.  RNC Chairman Robert M. "Mike" Duncan released the following statement today concerning the lawsuits.

"The campaign finance restrictions the RNC today challenged infringe on the First Amendment’s core: political speech and association," Duncan said.  "The RNC must have the ability to support state candidates, coordinate expenditures with our candidates, and truly engage in political activity on a national level.  The RNC has operated under and complied with these provisions of the law since their enactment, and as applied it is unconstitutional."

In a suit filed in the District of Columbia, the RNC and the California Republican Party are challenging McCain-Feingold's soft money restrictions as applied to various activities of the RNC and California Republican Party which are not related to federal elections.  Under McCain-Feingold, the RNC is prohibited from raising and spending soft money and much of the activities of state political parties, such as voter registration and get-out-the-vote activities, are regulated by federal law.  In 2003, the McCain-Feingold soft money restrictions were upheld on their face, but the suit here claims that the soft money restrictions cannot constitutionally be applied to activities which are not closely related to federal elections, such as support for candidates for state office and efforts to influence the passage of legislation.

In a suit filed in district court in Louisiana, the RNC and the Louisiana Republican Party are challenging the limits on coordinated expenditure that severely limit the ability of political parties to work with their candidates. The coordinated expenditure limits were upheld in 1996, on their face, to the extent that the political parties were simply paying the bills of their candidates under the coordinated expenditure limit. The suit challenges the coordinated expenditure limits as applied to the parties' own speech, when they want to do their own ads supporting their candidates.

James Bopp, Jr., RNC Vice Chairman, is lead attorney in both cases.  He recently won the case of Wisconsin Right to Life v. Federal Election Commission, which held that McCain-Feingold's blackout period for broadcast ads before an election could not be constitutionally applied to ads that do not call for a vote for or against a candidate.

PRESS RELEASE
November 5, 2008
Contact: James Bopp, Jr.
Phone: 812-232-2434; Fax 812-235-3685
jboppjr@aol.com

 
Ohio Restrictions on Political Speech Challenged
 
A lawsuit was filed late Monday in federal court in Ohio challenging that state's laws prohibiting and restricting political speech.
 
The plaintiff, All Children Matter, works to keep parents throughout the country informed about education reform, including charter schools, vouchers, and state fiscal matters affecting reform. The group wanted to mail "postcards" to Ohio residents commending two members of the Ohio legislature for their work on these issues. But Ohio law prohibits any incorporated organization from using its resources for "any partisan political purpose," including efforts "in aid of or opposition to" any candidate or any organization that "support or oppose[ ] any such candidate."
 
"This law is plainly unconstitutional," says James Bopp, Jr., lead counsel for All Children Matter. "It prohibits a huge swath of speech that the First Amendment plainly protects."
 
Another challenged law requires any organization to form and report as a "political contributing entity," if it publicizes its speech with funds that were "made, received, or used" "for the purpose of influencing the results of an election." A third determines that an organization is a PAC if its "primary or major purpose" is to "support or oppose" any candidate, "or to influence the result of any election through express advocacy." "States cannot regulate every aspect of a group just because it comments on a candidate's record or because someone thinks something it said might influence an election," says Bopp. "The power to regulate elections doesn't give the State free reign over political speech. Only unambiguously-campaign-related speech can be regulated, and there are only two types of political speech that meet that requirement: express advocacy and electioneering communications, and Ohio law goes far beyond either."
 
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
October 21, 2008
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

Court Sides With West Virginians For Life

A federal district court in West Virginia has sided with a West Virginia-based organization in many of its challenges to West Virginia election law.

The ruling will allow West Virginians for Life, Inc., to engage in political speech without fear of violating West Virginia law.

WVFL's proposed communications discuss a 1993 West Virginia Supreme Court of Appeals decision about state payment for abortions. Because the communications also mention the justice who wrote the decision, Margaret Workman, who is a candidate in the 2008 election for a seat on the court, the communications can bring serious consequences under West Virginia law.

However, ruling on WVFL's preliminary-injunction motion, Judge Thomas Johnston held that West Virginia's definition of "political action committee" covers solely those organizations whose only purpose is to support or oppose candidates. This means WVFL is not a political committee and need not bear the burdens West Virginia imposes on political committees. These include registering with the state, designating a treasurer, recordkeeping, limits on contributions received, contribution-source bans, extensive political-committee reporting, and termination requirements.

The court also held WVFL is likely to succeed on its contentions that:

● WVFL is the type of nonprofit corporation that has a First Amendment right to expressly advocate the election or defeat of a clearly identified candidate. This allows WVFL to do the communications no matter how West Virginia defines "express advocacy."

● Part of West Virginia's definition of "express advocacy" is unconstitutional. This means WVFL can do communications that may fall under this part of the "express advocacy" definition without having to report them.

● West Virginia's "electioneering communication" definition is unconstitutional, because it extends beyond broadcast, cablecast, and satellite communications. This means WVFL can do a proposed mass mailing without fear of having to report it as an electioneering communication.

WVFL, a non-profit corporation exempt from federal income taxation, is a non-sectarian and non-partisan organization and is not associated with any political candidate, political party, or campaign committee. It presents information about fetal development, abortion and its alternatives, and euthanasia. It seeks to promote the sanctity of all innocent life by influencing legislation and public policy. It often engages in political speech, including candidate-comparison fliers, candidate-comparisons ads, petitions, and mailings.

"This decision affirms First Amendment principles and an organization's right to engage in political speech," said James Bopp, Jr., lead counsel for the WVFL plaintiffs. "This is a victory for the Constitution, the supreme law of the land, over impermissible regulation of speech."

The action is West Virginians for Life, Inc. v. Ireland, Civil Action No. 1:08-cv-01133, in the United States District Court for the Southern District of West Virginia, and is consolidated with Center for Individual Freedom, Inc. v. Ireland, Civil Action No. 1:08-cv-00190. The complaint, preliminary-injunction brief, and preliminary-injunction orders are available at www.jamesmadisoncenter.org. 

James Bopp, Jr. has a national constitutional law practice with the law firm of Bopp, Coleson & Bostrom.
 

PRESS RELEASE
October 6, 2008
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685
jboppjr@aol.com

West Virginians for Life Seeks Injunction Against West Virginia Election Law

A West Virginian organization is asking a federal court to prevent West Virginia from enforcing unconstitutional parts of West Virginia election law.

A hearing on a preliminary-injunction motion is set for 9:30 a.m. Oct. 8 at the federal courthouse in Charleston, W. Va.

Between now and Election Day, West Virginians for Life, Inc., wants to do a radio ad, mass mailing, and petition about a 1993 West Virginia Supreme Court of Appeals decision requiring West Virginia to pay for abortions for Medicaid recipients.

Yet the communications mention the author of the decision, who is a candidate in the 2008 election for a seat on the court. So WVFL fears the communications will bring serious consequences under West Virginia law. This is so for three sets reasons.

First, West Virginia law bans corporations from doing "express advocacy." Because the express-advocacy definition is vague, WVFL cannot know for sure whether its communications are banned.

Therefore, WVFL asks that the federal court hold that WVFL is the type of nonprofit corporation that has a First Amendment right to do express advocacy. This will allow WVFL to do its communications no matter how West Virginia defines express advocacy.

WVFL also asks the court to hold that the vagueness of the express-advocacy definition makes the express-advocacy reporting requirements vague, and therefore unconstitutional.

Second, WVFL fears that doing any of its planned communications would convert it into a political committee under West Virginia law. That means WVFL would have to bear all the burdens West Virginia places on political committees. These include registering with the state, designating a treasurer, recordkeeping, limits on contributions received, contribution-source bans, extensive reporting, and termination requirements.

WVFL asks that the court hold that these burdens are unconstitutional. The reason is that WVFL is not under the control of, nor does it have the major purpose of nominating or electing, one or more candidates for state or local office in West Virginia.

Third, the radio ad and mass mailing are "electioneering communications" under West Virginia law, so WVFL would have to file reports about them with the state. This violates the U.S. Supreme Court's 2007 decision in FEC v. Wisconsin Right to Life, Inc. in two ways:

● Government may regulate as electioneering communications only broadcast, cable, and satellite communications. West Virginia law also regulates paid communications via mass mailings, phone banks, billboards, newspapers, magazines, and other periodicals.

● Government may regulate electioneering communications when their only reasonable interpretation is an appeal to vote for or against one or more clearly identified candidates. Any other reasonable interpretation means government may not regulate an electioneering communication. West Virginia regulates electioneering communications that don't pass the "appeal to vote" test.
For each of these reasons, West Virginia's electioneering-communication definition and reporting requirements are unconstitutional.

WVFL, a non-profit corporation exempt from federal income taxation, is a non-sectarian and non-partisan organization and is not associated with any political candidate, political party, or campaign committee. It presents information about fetal development, abortion and its alternatives, and euthanasia. It seeks to promote the sanctity of all innocent life by influencing legislation and public policy. It often engages in political speech, including candidate-comparison fliers, candidate-comparisons ads, petitions, and mailings.

The action is West Virginians for Life, Inc. v. Ireland, Civil Action No. 1:08-cv-01133, in the United States District Court for the Southern District of West Virginia. The complaint and preliminary-injunction brief are available at www.jamesmadisoncenter.org.

James Bopp, Jr. has a national constitutional law practice with the law firm of Bopp, Coleson & Bostrom.
 

PRESS RELEASE
October 3, 2008
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

Committee for Truth in Politics Seek Preliminary Injunction

Today, the Committee for Truth in Politics, Inc. ("CTP") filed suit to protect it from FEC investigation and enforcement action for running an ad, titled Basic Rights, which qualifies as an "electioneering communication" under federal election law, but cannot be regulated because it is protected by the "appeal-to-vote" test announce by Chief Justice Roberts in the 2007 decision of Federal Election Commission v. Wisconsin Right to Life ("WRTL II").

The text of the ad is as follows:

Announcer: Senator Obama.

Why did you vote against protecting infants that survived late term abortions?

Not once, but four times.

Even Congress unanimously supported protections identical to those you blocked in Illinois.

The Supreme Court upheld the ban on partial birth abortions.

And yet today, you keep working to roll back this law.

Call Senator Obama. Tell him to stop trying to overturn these basic human rights.

The Committee for Truth in Politics is responsible for the content of this advertising.

(The ad, without the disclaimer, can be viewed at http://www.youtube.com/watch?v=CrtOBespwYg)
The ad may not be prohibited because the Supreme Court held in "WRTL II" that broadcast ads that are "electioneering communications" under McCain-Feingold, because they mention the name of a federal candidate within 60 days of a federal election, may not be banned if they "may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate." Basic Rights contains no such "appeal to vote," but is a grassroots lobbying ad on a public issue addressed to an incumbent public official.

Under WRTL II's constitutional analysis, compelled reporting is also unconstitutional as to ads that may not be prohibited because they do not have an "appeal-to-vote." WRTL II was applying the First Amendment principle, recognized by the Court in Buckley v. Valeo (1976), that all campaign-finance laws must be "unambiguously related to the campaign of a particular federal candidate" and this principle has been applied to both prohibitions and disclosure requirements.

WRTL II applied this principle by requiring that "electioneering communications" comply with the appeal-to-vote test. As a result, this ad cannot be prohibited nor subject to any other regulation, including compelled disclosure. The ad has been broadcast in Wisconsin, Pennsylvania, and North Carolina, and the suit was filed in the U.S. District Court for the Eastern District of North Carolina.

The suit also challenges the FEC's ad hoc standards for determining whether a group may be treated as a political committee ("PAC"), under which PAC-enforcement policy the FEC has engaged in intrusive and unauthorized investigations of groups to determine whether they might be PACs based on vague and overbroad criteria.

James Bopp, Jr., lead attorney for CTP in this litigation, comments: "The fact that CTP feels compelled to proceed without the protection of a preliminary injunction before speaking is an indication of the fact that many courts have failed to vigorously protect First Amendment rights with timely preliminary injunctions in advance of a group's speech. But the First and Fifth Amendments protect CTP. It is a sad reflection on the state of our freedoms today that CTP has to sue for protection that should already be recognized. As to the FEC's standards for determining political committees, the FEC is, in the words of the Fourth Circuit, 'handing out speeding tickets without telling anyone what the speed limit is.'"

The case is titled Koerber v. FEC. Case documents are available on the website for the James Madison Center for Free Speech at www.jamesmadisoncenter.org.

James Bopp, Jr. has a national constitutional law practice with the law firm of Bopp, Coleson & Bostrom.
 

PRESS RELEASE
September 25, 2008
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685
jboppjr@aol.com

Real Truth About Obama, Inc. Files Appeal Brief

Today, The Real Truth About Obama, Inc. ("RTAO") filed its appeal brief in the Fourth Circuit, appealing a district-court denial of a preliminary injunction against the Federal Election Commission and the Department of Justice that would have permitted RTAO to raise funds and broadcast ads discussing Barack Obama's positions on abortion. RTAO has also asked the Fourth Circuit for an injunction pending appeal and that the appeal be expedited.

RTAO is an issue-advocacy 527 corporation formed to tell the American people the real truth about Senator Obama's public policy positions. Its first project is about Obama's radical pro-abortion views and voting record. RTAO does not expressly advocate the election or defeat of any candidate, but rather only does issue advocacy. The Supreme Court has stated that issue advocacy is constitutionally protected as it "conveys information and educates. An issue ad's impact on an election, if it exists at all, will come only after the voters hear the information and choose--uninvited by the ad--to factor it into their voting decisions." Wisconsin Right to Life, Inc. v. Federal Election Commission ("WRTL II"). Nonetheless, RTAO feared that if it would broadcast its issue ads on Obama's position on abortion, it would be punished by the FEC and DOJ for violating campaign finance laws.

RTAO filed suit on July 30 challenging FEC regulations that unconstitutionally restrict RTAO's ability to engage in issue advocacy. After the 2004 election, the FEC adopted an enforcement policy where it would deem 527 groups to be federal political action committees if they praised or criticized federal candidates on issues. Several groups, including the Swift Boat Veterans for Truth, were severely fined. RTAO alleged in its suit that the FEC's complex scheme on PAC status violated numerous Supreme Court decisions.

Specifically, RTAO first challenged the FEC's flawed alternative definition of express advocacy, 11 C.F.R. § 100.22(b), which the FEC has used to prohibit groups like RTAO from participating in protected issue advocacy. Second, RTAO challenged the FEC's regulation dealing with solicitation of donations, 11 C.F.R. § 100.57(a), which permits the FEC to regulate donations made for issue advocacy. Third, RTAO challenged the FEC's PAC status enforcement policy, which requires issue advocacy groups like RTAO to register as political committees. And fourth, RTAO challenged 11 C.F.R. § 114.15, which is the FEC's vague rule purporting to implement WRTL II's appeal-to-vote test, which test was created to protect issue advocacy by limiting the corporate prohibition on "electioneering communications."

"The fact that the FEC said that one of RTAO's ads is not express advocacy, but the district court judge says that it is, illustrates that the FEC's express-advocacy rule is unconstitutionally vague," states James Bopp, Jr., lead attorney for The Real Truth About Obama. "The FEC is, in the words of the Fourth Circuit, 'handing out speeding tickets without telling anyone what the speed limit is,'" he adds.

The case is titled The Real Truth About Obama, Inc. v. FEC et al., Case No. 3:08-cv-00483-JRS. Case documents are available on the website for the James Madison Center for Free Speech at www.jamesmadisoncenter.org.

James Bopp, Jr. has a national constitutional law practice with the law firm of Bopp, Coleson & Bostrom.
 

PRESS RELEASE 
 Wednesday September 24, 2008
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

 

Tennessee State Senator Rosalind Kurita Asks Federal Court to Uphold
Primary Election Results and Place Her Name on November 2008 Ballot

 

Today, Senator Rosalind Kurita, Speaker Pro Tempore of the Tennessee State Senate, filed a Complaint with the United State District Court for the Middle District of Tennessee, asking the Court to uphold the results of the primary election and place her name on the ballot for the November 2008 general election.

 

 In the August 2008 Democratic primary election, Senator Kurita beat her challenger, Tim Barnes.  After losing the primary election to Senator Kurita, Barnes filed an election contest with the Democratic State Primary Board, stating that the results of the primary election did "not represent the will" of the voters.  Without providing a fair hearing to Senator Kurita, the Tennessee Democratic State Primary Board declared the August primary election "incurably uncertain." The Democratic Executive Committees for Montgomery, Cheatham, and Houston Counties ultimately decided that Barnes would be the Democratic nominee, even though he lost the August primary election to Senator Kurita.

 

 James Bopp, Jr., lead counsel for Senator Kurita in this case explained, "the Fourteenth Amendment guarantees citizens the right to a fair hearing.  The Democratic State Primary Board decided to strip Senator Kurita of her right to a fair hearing on the August primary election.  Not only was Senator Kurita deprived of her Constitutional rights, the voters in her District were denied the right to have their primary votes mean anything."  He continued, "the Democratic State Primary Board's decision to strip Senator Kurita of a proper hearing was made arbitrarily and capriciously.  Moreover, the decision of the State Primary Board sets a dangerous precedent for overturning future elections and disregarding the expressed will of the voters."  Local counsel for Senator Kurita are  former Senator Bob Rochelle and Price Thompson of the Lebanon law firm of Rochelle, McCulloch and Aulds.

 

 Adds Senator Kurita, "I am sure that the Court will do what is just and right in this case.  I am honored that the voters of the 22nd District chose me to represent them in the general election, and I will do whatever it takes to make sure that their votes count and are not disregarded as I continue to move forward with my write-in campaign and hopefully my campaign as the Democrat nominee."

 

 Copies of the complaint are available in PDF format online at the James Madison Center's website, 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 and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.


PRESS RELEASE 
September 9, 2008
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

Utah's Regulation of Issue Advocacy and
Multipurpose Organizations Ruled Unconstitutional

 

PRESS RELEASE 
August 21, 2008
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

527 Group Seeks Injunction Against the Federal Election Commission
For Its New Ad About Barack Obama

The Real Truth About Obama, Inc. ("RTAO") filed a motion yesterday seeking an injunction against the Federal Election Commission and the Department of Justice permitting RTAO to broadcast a new ad that accuses Barack Obama of lying about his voting record on abortion.

RTAO is an issue advocacy 527 corporation formed to tell the American people the real truth about Senator Obama's public policy positions. Its first project is about Obama's radical pro-abortion views and voting record. RTAO does not make "express advocacy" communications, but rather only does issue advocacy. The Supreme Court has stated that such issue advocacy is constitutionally protected as it "conveys information and educates. An issue ad's impact on an election, if it exists at all, will come only after the voters hear the information and choose--uninvited by the ad--to factor it into their voting decisions." Wisconsin Right to Life, Inc. v. Federal Election Commission ("WRTL II"). Nonetheless, RTAO fears that if it broadcasts its new issue ad it will be subject to an enforcement action by the FEC and DOJ for violating campaign finance laws.RTAO first filed suit against the FEC and DOJ three weeks ago challenging FEC regulations and an FEC enforcement policy that unconstitutionally restrict RTAO's ability to engage in issue advocacy. First, RTAO challenges the FEC's flawed alternative definition of express advocacy, 11 C.F.R. § 100.22(b), which the FEC has used to prohibit groups like RTAO from participating in protected issue advocacy. Second, RTAO challenges the FEC's regulation dealing with solicitation of donations, 11 C.F.R. § 100.57(a), which permits the FEC to regulate donations made for issue advocacy. Third, RTAO challenges the FEC's PAC status enforcement policy, which requires issue advocacy groups like RTAO to register as political committees. And fourth, RTAO challenges 11 C.F.R. § 114.15, which is the FEC's vague rule purporting to implement WRTL II's appeal-to-vote test, which test was created to protect issue advocacy by limiting the corporate prohibition on "electioneering communications."

"It's unfortunate that before an organization can exercise its First Amendment right to speak out on an issue it must first seek an injunction in federal court," states James Bopp, Jr., lead attorney for The Real Truth About Obama. "Something must change. I'm hopeful that as a result of this case, and others like it, we can push back overreaching campaign finance laws and restore to the people the right to speak out on political issues."

The text of RTAO's latest ad titled "Survivors" is as follows:

NURSE: The abortion was supposed to kill him, but he was born alive.  I couldn't bear to follow hospital policy and leave him on a cold counter to die, so I held and rocked him for 45 minutes until he took his last breath. 

MALE VOICE: As an Illinois Democratic State Senator, Barack Obama voted three times to deny lifesaving medical treatment to living, breathing babies who survive abortions.  For four years, Obama has tried to cover-up his horrendous votes by saying the bills didn't have clarifying language he favored. Obama has been lying.  Illinois documents from the very committee Obama chaired show he voted against a bill that did contain the clarifying language he says he favors.   

Obama's callousness in denying lifesaving treatment to tiny babies who survive abortions reveals a lack of character and compassion that should give everyone pause. 

Paid for by The Real Truth About Obama, Inc.  

The case is titled The Real Truth About Obama, Inc. v. FEC et al., Case No. 3:08-cv-00483-JRS, in the United States District Court for the Eastern District of Virginia. A copy of the Complaint and preliminary injunction motion are available on the website for the James Madison Center for Free Speech at www.jamesmadisoncenter.org.

James Bopp, Jr. has a national constitutional law practice with the law firm of Bopp, Coleson & Bostrom.

PRESS RELEASE 
August 15, 2008
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

 

Citizens United Appeals Case About Hillary: The Movie to U.S. Supreme Court

 

Yesterday, Citizens United filed its appeal with the United States Supreme Court, in Citizens United v. FEC, asking the Court to allow it to broadcast ads for its movie without having to comply with the disclosure requirements on "electioneering communications" contained in McCain-Feingold.

The appeal concerns Citizens United's desire to broadcast television advertisements for its documentary titled Hillary: The Movie (hillarythemovie.com). Because the ads qualify as "electioneering communications" under McCain-Feingold, the FEC requires that Citizens United report its donors and put political disclaimers on the ads.

Citizens United objects to these regulations because the district court and Federal Election Commission agree that the advertisements are "genuine issue ads" that are fully protected from regulation by the First Amendment under the rationale of the Supreme Court's recent decision in FEC v. Wisconsin Right to Life (2007) ("WRTL II"). Because the ads do not contain an "appeal to vote," they cannot be prohibited. As a result, Citizens is arguing that they also cannot be regulated in any way, including by requiring the disclosure of its donors.

Citizens United also appeals the decision of the district court that broadcasting the movie is prohibited by McCain-Feingold.

James Bopp, Jr., counsel for Citizens United states: "We believe the questions that this case raises are substantial, so that the Supreme Court should accept our appeal. These advertisements are protected by the First Amendment as issue ads and are beyond the legitimate reach of campaign finance laws. And the notion that a feature-length movie can be banned is a return to the days of government censorship and book-burnings. This movie has been shown in theaters and is sold on DVD by major national retailers, and it is accompanied by a published compendium book for which royalties were paid to Citizens United. It is not at all the same as the ‘ads' that the Supreme Court considered in McConnell v. FEC when it facially upheld the prohibition on electioneering communications."

Bopp has argued multiple cases before the Supreme Court, including WRTL II, in which the Court limited McCain-Feingold's prohibition on electioneering communications in order to protect WRTL's grassroots lobbying ads.

A copy of the Second Jurisdictional Statement filed with the Court, along with other case documents, can be found on the website for the James Madison Center for Free Speech at www.jamesmadisoncenter.org.

 

PRESS RELEASE 
July 30, 2008
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com
Please try the cell phone first.

 

527 Group Files Suit Against the Federal Election Commission
Challenging Restrictions on Issue Advocacy About Barack Obama

Today, The Real Truth About Obama, Inc. ("RTAO") filed suit in federal court against the Federal Election Commission and the Department of Justice to enjoin them from enforcing various FEC rules in order for it to engage in issue advocacy about Barack Obama's position on abortion and other issues.

RTAO was formed to tell the American people the real truth about Senator Obama's public policy positions.  Its first project is about Obama's radical pro-abortion views and voting record. However, RTAO fears that it will be deemed a federal PAC, if it does the project, because of the FEC's enforcement actions arising out of the 2004 election where various issue-advocacy 527s, such as the Swift Boat Veterans for Truth, were fined for failure to register as a federal PAC, even though they only engaged in issue advocacy.  The FEC and the Department of Justice have threatened to do the same this year.

In Wisconsin Right to Life, Inc. v. Federal Election Commission ("WRTL II"), the United States Supreme Court described issue advocacy: "Issue advocacy conveys information and educates. An issue ad's impact on an election, if it exists at all, will come only after the voters hear the information and choose--uninvited by the ad--to factor it into their voting decisions."

According to James Bopp, Jr., lead attorney for The Real Truth About Obama, " Issue advocacy cannot be regulated by the FEC, and groups that engage in it cannot constitutionally be required to register as federal PACs.  The FEC's enforcement actions arising out of the 2004 election were outrageously unconstitutional, and we hope that this lawsuit will to put a stop to a repeat in 2008."

RTAO's abortion information project includes a website, www.TheRealTruthAboutObama.com, and a radio ad called Change. That domain name is reserved, but the website is not operational due to the FEC's enforcement policies, which prevent RTAO from even raising money for the project. The Change ad sets out Senator Obama's position on abortion, but contains no express words of advocacy of his election or defeat, such as "vote for" or "defeat."

RTAO is an issue-advocacy 527 corporation, meaning that it is a nonprofit "political organization," under § 527 of the Internal Revenue Code. It is based in Richmond, Virginia. RTAO's articles of incorporation specify that its "primary and specific purposes" are "[t]o provide accurate and truthful information about the public policy positions of Senator Barack Obama," "to engage in non-partisan voter education, registration and get out the voter activities," and "to engage in any activities related to federal elections . . . authorized by . . . Section 527." RTAO's articles specifically prohibit it from "(a) expressly advocat[ing] the election or defeat of any clearly identified candidate for public office; or (b) mak[ing] any contribution to any candidate for public office."

RTAO's Complaint challenges three FEC regulations and an FEC enforcement policy. First, RTAO challenges 11 C.F.R. § 100.22(b), which is the FEC's secondary "express advocacy" definition. In WRTL II, every member of the U.S. Supreme Court recognized that "express advocacy" requires the so-called "magic words," such as "vote for" or "defeat" (which the FEC's primary definition, at 11 C.F.R. § 100.22(a), requires). Yet the FEC continues to enforce its vague and overbroad rule defining "express advocacy," even where the communication does not contain such explicit words. If an ad is deemed to contain express advocacy, it becomes an "independent expenditure," which is forbidden to corporations, such as RTAO, must be reported to the FEC, must contain a disclaimer, and can trigger PAC status.

Second, RTAO challenges 11 C.F.R. § 100.57(a), which says that, if a group solicits donations to use to "support or oppose the election of a . . . candidate," then those donations will be considered "contributions" under federal law. Permissible "contributions" under federal law are limited in various ways, such as to their source and amount, and receiving "contributions" can trigger PAC status. Also, a group can only solicit "contributions" by using "Federal funds." So if a group finds out, after the fact, that its solicitation for donations were actually for "contributions," it would mean that it had violated several provisions of federal law.

Third, RTAO challenges the FEC's PAC status enforcement policy (published in two FEC notices in the Federal Register and used to find several issue-advocacy 527s in violation of federal law for failing to register as federal PACs). This policy first uses the two provisions already described (11 C.F.R. §§ 100.22(b) and 100.57(a)) to meet the statutory trigger of $1,000 in "expenditures" or "contributions" for PAC status. Then the policy uses a vague and overbroad interpretation of the U.S. Supreme Court's major-purpose test in order to deem certain groups to be federal PACs.

Finally, RTAO also challenges 11 C.F.R. § 114.15, which is the FEC's rule purporting to implement WRTL II's appeal-to-vote test, which protects issue advocacy by limiting the corporate prohibition on "electioneering communications."

James Bopp, Jr., counsel for RTAO, states: "The U.S. Supreme Court has recently reaffirmed the constitutional protection for issue advocacy. The FEC, however, refuses to change its regulations and enforcement policy to conform with that mandate. Instead, the FEC plans to use its complicated PAC enforcement policy, developed in 2004, to punish groups for engaging in issue advocacy. This is unconstitutional, and we hope the federal courts will put an end to it."
 
A copy of the Complaint and preliminary injunction motion, also filed today, are available on the website for the James Madison Center for Free Speech at www.jamesmadisoncenter.org.

James Bopp, Jr. has a national constitutional law practice with the law firm of Bopp, Coleson & Bostrom.

 

PRESS RELEASE 
Friday, July 25, 2008
 Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

 

Judicial Candidate Seeks U.S. Supreme Court Review of
Constitutionality of Rescue Funds for
Publicly Funded Judicial Candidates in North Carolina
 

Today, a judicial candidate and a North Carolina political action committee filed a petition for writ of certiorari with the U.S. Supreme Court, asking it to review the Fourth Circuit's ruling upholding the rescue funds provisions of North Carolina's public funding scheme. The rescue funds provision is meant to assist publicly funded candidates to fend off "excess" spending by their privately funded opponent and any independent expenditures spent against them. When privately funded candidates spend over a certain amount and when independent groups spend money against  publicly funded opponent, the publicly funded candidate gets additional government funds.

In the case, Duke v. Leake, judicial candidate Judge Duke and North Carolina Right to Life Committee for Independent Expenditures Committees wanted to make expenditures during the 2006 election cycle without triggering additional government funds to that candidate's publicly funded opponent.  Duke made expenditures in excess of the triggering amount and IEPAC was deterred from making any.

In addition, North Carolina's rescue funds provisions requires additional burdensome reports to be file by privately funded candidates and by independent spenders which are not required for publicly funded candidates.
 
The Fourth Circuit ruled that the rescue funds and disproportionate reporting requirements did not unconstitutionally burden privately funded candidates like Judge Duke or independent spenders, dismissing the rationale of an Eighth Circuit case, Day v. Holahan, which found such burdens on speech unconstitutional. In the recent case of Davis v. FEC, however, the U.S. Supreme Court cited Day for the proposition that a government benefit to one candidate is an unconstitutional burden on their opponent.

James Bopp, Jr., lead counsel for Plaintiffs, "by endorsing rationale of the Eighth Circuit's decision in Day, it is now obvious that treating candidates differently, by affording rescue funds to penalize the "excess" spending of a privately funded opponent or independent sending against the publicly funded candidate, imposes an unconstitutional burden. Furthermore, the Supreme Court struck down disproportionate reporting requirements in Davis. North Carolina's similar requirements, therefore, cannot survive."

Bopp also notes, "Given the popularity of public financing schemes and their accompanying rescue funds provisions, the Supreme Court should take this case to ensure that privately funded candidates and independent spenders are not penalized and victimized by these rescue fund provisions."

Copies of the brief are available in PDF format online at the James Madison Center's website, www.jamesmadisoncenter.org, under the  "Duke v. Leake" link

James Bopp, Jr. has a national federal and state election law practice with the law firm of Bopp, Coleson & Bostrom. 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 26, 2008
 Contact: James Bopp, Jr.
Phone: 812-232-2434; Fax 812-235-3685
 jboppjr@aol.com

 

Millionaire's Amendment Decision Settles Two Key Analytical Issues

Today, the United States Supreme Court struck down McCain-Feingold's so-called Millionaire's Amendment. In so doing it resolved two key issues concerning the constitutional analysis to be applied in cases that involve campaign-finance disclosure and public funding of elections. The James Madison Center for Free Speech and Citizens United filed an amici curiae brief opposing the Millionaire's Amendment, in Davis v. Federal Election Commission, arguing that it imposed unconstitutional burdens on the right of candidates to self-fund their campaigns.

Jack Davis, a Democrat candidate for the U.S. House, became subject to the Amendment by spending his own money to help fund his campaign. The Amendment requires House candidates intending to contribute (or loan) more than $350,000 to their campaign to notify the FEC and opponents of that intent and then file frequent reports on their self-funding. When the $350,000 threshold is reached, the Amendment also raises the contribution limits of that candidate's opponent, allowing the opponent to raise significantly more money from people who have reached their $2,300 contribution limit. The FEC and so-called campaign finance reformers attempted to justify the Amendment as an attempt to level the playing field for candidates. But it actually favors incumbents because it only addresses the advantage that personal wealth can give to a campaign, not the advantages that incumbents have (e.g., name recognition, public office, and prior campaign experience that make fundraising and campaigning easier).

A three-judge federal district court in DC ruled against Davis, holding that the Amendment did not burden his free speech rights but merely benefitted those choosing not to give (or loan) so much money to their campaigns. The court analogized the Amendment to public-funding schemes, which also impose additional disclosure requirements and raise limits when non-participating candidates spend beyond certain expenditure limits.

The James Madison Center for Free Speech and Citizens United filed an amici curiae brief in support of Davis. The brief made two central arguments. First, it argued that the disclosure requirements were unconstitutional for requiring that a candidate's contributions to his campaign be disclosed as they were being made, in addition to being reported on the normal periodic disclosure schedule. Second, it argued that a law benefitting one candidate necessarily harmed the other candidate because a campaign is a zero-sum contest.

The Supreme Court declared the disclosure requirements unconstitutional. It recognized that compelled disclosure is inherently a burden on First Amendment privacy rights that must be "closely scrutinized." The Amendment required a candidate to report contemporaneously information he was already required to disclose on periodic reports, but that was a burden triggering "close scrutiny." As to the required scrutiny, it involved two elements identified in Buckley v. Valeo (1976), i.e., "exacting scrutiny" (which has in other contexts been identified as "strict scrutiny") and a "relevant" and "substantial" "correlation" or "relation" between the government's interest and the information that would be disclosed (which Buckley interpreted to require that any expenditure be "unambiguously related to the campaign of a specific candidate"). That the level of scrutiny the Court imposed was very high is evidenced by the fact that it held the disclosure requirements here to be unconstitutional, even though they only required earlier reporting of contributions that would have to be reported anyway and even though they imposed disclosure in the highly-regulated field of candidate campaign financing disclosure.

As to whether a benefit to one candidate burdens the opposing candidate, the Court said that it did. And it cited an Eighth Circuit decision, Day v. Holahan, which applied the same principle in the public funding context. This settles a long simmering debate among the lower federal courts about whether a benefit to an opposing candidate harms the non-benefitted candidate. Davis clearly establishes that there is such a harm and held that this harm was not constitutionally justified.

According to James Bopp, Jr., counsel for the James Madison Center for Free Speech and Citizens United: "This decision has broad implications for other cases. The Court has clarified that compelled disclosure is inherently a First Amendment burden that must be justified under a very high standard of review. And candidates have a First Amendment right to fund their own speech without being burdened by government provision of benefits to their opponents. This has broad implications for public-funding schemes."

The amici curiae brief can be found 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 and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.

 

Monday June 23, 2008
 Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

James Madison Center for Free Speech Files
Amicus Curiae Brief Supporting Historical Park

Today, the James Madison Center for Free Speech filed a U.S. Supreme Court amicus curiae brief in support of the city of Pleasant Grove, Utah. The city was sued in 2005 for refusing to include a monument of the "Seven Aphorisms," or principles, of the Summum religion as part of a historical park. The Aphorisms include beliefs that "the universe is a mental creation" and that "all truths are but partial truths."

The displays in Pioneer Park represent the history of Pleasant Grove and commemorate events significant to that history. Of the many things included in the park are a pioneer water well (donated by the Lions Club), a flour mill stone (donated by a resident), a ten commandments monument (donated by the Fraternal Order of Eagles), and a granary (donated by a local family). The displays are approved by the city and can be removed by the city at any time. Upon the city's refusal to accept its donated monument, the Summum religious group sought an injunction in federal court.

The federal district court denied Summum's injunction request, but the Tenth Circuit Court of Appeals reversed, holding that the First Amendment required the city to allow Summum's monument to be placed in the park, as well. Because the city had created a forum by allowing private displays to be placed in the park, the Court reasoned, any monument should be allowed to be placed in the park, subject only to time, place, and manner restrictions. An evenly divided Tenth Circuit declined to rehear the case en banc. But the United States Supreme Court agreed to hear it in March 2008.

According to James Bopp, Jr., counsel for the James Madison Center, "this is a clear example of government speech. The city has a specific, historical message it is conveying in Pioneer Park and has final review and continued control over everything that is part of that message. Yet the Tenth Circuit assumed that because individuals were supporting the city's historical message, the speech involved amounted to private speech." Bopp continues, "such a conclusion is wrong and leads to untenable results. Every time someone helps the government convey its message, others would then be entitled to undermine that message from the very outset. The government would have to either refuse individual participation in its message or would be required to allow opposing views to be part of that message. Government support of cancer awareness postage stamps and specialty ‘pro-life' license plates would always necessitate access for a contrary, private message. Such is not the case."

The amicus brief can be found at www.jamesmadisoncenter.org.

James Bopp, Jr. has a national federal and state election law practice with the Terre Haute, Indiana law firm of Bopp, Coleson & Bostrom. 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, May 30, 2008
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685
jboppjr@aol.com

Indiana Democratic and Republican Parties File Joint Friend-of-the-Court Brief in
Indiana Supreme Court to Protect Political Computer-Generated Phone Calls

Today, the Indiana Democratic Party and the Indiana Republican Party filed a joint friend-of-the-court brief in a case involving computer-generated political calls. The case, State of Indiana v. American Family Voices, Inc., was initiated by the State of Indiana against American Family Voices and others for using automatic dialing machines to make political calls during the 2006 election cycle. The case was dismissed by the trial court, based on the Defendant's argument that the statute only prohibited commercial calls.  The Attorney General appealed and the case was taken up directly by the Indiana Supreme Court, bypassing the Court of Appeals.

Both political parties would use robocall technology to make political calls, if it were legal. In their brief, the political parties argue that the Indiana Supreme Court should construe the statute to only apply to commercial calls. To apply it to political calls violates both the Indiana Constitution and the First Amendment of the U.S. Constitution.

James Bopp, Jr., counsel for both the Indiana Democratic and Republican Parties in this matter, states that "this type of political call serves a valuable public function that is in the public's interest. Such calls are used to remind Hoosiers to register to vote and to vote on election day." He continues, "if this law is interpreted to include political calls, a disservice will be done to Indiana residents, and political candidates and parties will be unconstitutionally deprived of their free speech rights." 

Bopp successfully argued the most recent campaign finance case before the Indiana Supreme Court, Brownsburg Area Patrons Affecting Change v. Baldwin, decided in 1999, and has won four of the five campaign finance cases he has orally argued in the United States Supreme Court.

Oral argument in the case is scheduled for June 16, 2008.

James Bopp, Jr. has a national federal and state election law practice. He is with the law firm of Bopp, Coleson & Bostrom in Terre Haute, IN, 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 May 21, 2008
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

Judicial Candidate Seeks Right to Campaign

Judicial candidate Randolph Wolfson filed suit today in federal court in Phoenix to block enforcement of Arizona judicial canons that restrict the ability of state court judicial candidates to engage in ordinary political activities as part of their campaigns. Mr. Wolfson is a resident of Golden Valley, Arizona, and is a candidate for Superior Court Judge in Mohave County in the 2008 election.

Elections for state court judges in Arizona are partisan. Yet under Arizona law, judicial candidates are significantly limited in their ability to engage in many political activities typical of election campaigns. The Arizona Code of Judicial Conduct limits a judicial candidate's ability to speak on disputed legal or political issues, prohibits candidates from supporting other candidates or ballot initiatives, and bans candidates from personally soliciting campaign contributions.

Mr. Wolfson previously sought to challenge these provisions during the 2006 election. This case was dismissed, however, on the grounds that Mr. Wolfson had not first sought an advisory opinion from the state's Judicial Ethics Advisory Commission as to whether he was prohibited from announcing his views, making endorsements, or personally soliciting money for his campaign. This time, Mr. Wolfson has received such an opinion, Advisory Opinion 08-01, which confirms the limits placed on his speech by the Arizona Code.

According to attorney James Bopp, Jr., lead counsel for the plaintiffs, "these canons are in direct violation of the First Amendment. Judicial candidates' free speech rights are being unconstitutionally restricted and voters are being deprived of their right to cast an informed vote." He continues, "if a state chooses to elect its judges, it has to allow judicial candidates to engage in the sorts of political activities that are a normal part of any political campaign." Mr. Bopp successfully argued the U.S. Supreme Court's decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which held unconstitutional a Minnesota rule that prohibited judicial candidates from "announc[ing] their views on disputed legal or political issues."

Mr. Wolfson has asked for a preliminary injunction so that he and other Arizona judicial candidates may campaign freely prior to the November, 2008 election.

The case is Wolfson v. Brammer, et al., case number 08-CV-958. The action was brought by attorneys from the James Madison Center for Free Speech, with the assistance of attorneys from the Alliance Defense Fund. The Complaint and Memorandum supporting the motion for preliminary injunction are 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.
 

PRESS RELEASE
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685
jboppjr@aol.com

 Federal Court Allows Judicial Candidates To State Their Views On Questionnaires

Today, an Indiana federal court granted an injunction against rules preventing judicial candidates from answering a candidate questionnaire. The parties to the suit include Torrey Bauer and Judge David Certo, judicial candidates in the upcoming election, and Indiana Right to Life, who sent judicial candidates questionnaires asking them to voice their opinion on various issues.

Judge Springmann held that Plaintiffs are likely to succeed in their challenge to the constitutionality of Indiana's judicial canons that forbid judicial candidates from making "pledges or promises" of conduct in office or statements that "commit or appear to commit" candidates on issues likely to come before. Plaintiffs claim that these canons violate the First Amendment to the U.S. Constitution because they prohibited candidates from simply announcing their views on issues.  The court's ruling prevents Indiana's Commission on Judicial Qualifications from enforcing these provisions against judicial candidates who answer the IRTL questionnaire.

Indiana Right to Life had sent a questionnaire to candidates for judicial office prior to the May 6, 2008, primary requesting that they state their views on policies and court decisions related to such matters as assisted-suicide and abortion. Judge Certo along with many other judicial candidates, refused to do so, concerned that he would be disciplined by the Commission in light of the judicial rules and the Commission's interpretation of their rules. Mr. Bauer had answered the questionnaire but recognizes that doing so exposes him to discipline.  In 2002, the U.S. Supreme Court held unconstitutional a Minnesota rule that prohibited judicial candidates from "announcing their views on disputed legal or political issues.

According to James Bopp, Jr., lead counsel for the plaintiffs, the Indiana judicial canons "contradict the U.S. Supreme Court's decision and subsequent federal court ruling that recognize that judicial candidates have a right to respond to questionnaires like this and that voters have a right to hear what they have to say." Bopp, who successfully argued the case challenging the Minnesota judicial rule struck down by the U.S. Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), stated that Indiana's canons and the Commission's interpretation of them "cover the same unconstitutional ground" as Minnesota's rule that prohibited judicial candidates from announcing their views had done. 

The case is Bauer v. Shepard, No. 3:08-cv-196 (N.D. Ind. Apr. 18, 2008). The 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 former Co-Chairman of the Election Law Subcommittee of the Federalist Society.
 

PRESS RELEASE 
Monday, May 5, 2008
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

Indiana Supreme Court Advised To Make Judicial Rules Constitutional

 

 Today, the James Madison Center submitted its Comments on Indiana's Proposed Judicial Rules, advocating that the Indiana Supreme Court take a close look at all of its provisions in the context of the First Amendment. The Center focused in particular on the Rules' commits provision and a new recusal provision, both of which affect judges' and judicial candidates' speech in the election context. The Court invited public comment on the rules. 

 

 Previous versions of the two provisions are currently being challenged in federal court because they reach too much constitutionally protected speech. The Proposed Rules make significant changes to those provisions, but not enough to make them constitutional. They still can cause judicial candidates to refrain from announcing their views because they either believe the rule prohibits them from announcing them or because if they do speak, they will have to recuse themselves from a case involving that issue. Violations of either provision can result in discipline.

 

 The United States Supreme Court has held unconstitutional a Minnesota rule that prohibited judicial candidates from "announc[ing] their views on disputed legal or political issues." The Rules continue to reach such protected speech because they are unclearly drafted, making judicial candidates guess at their meaning and ultimately to chose not to speak at all.

 

 According to attorney James Bopp, Jr., general counsel for the Center, "this is Indiana's opportunity to get these rules right. Unless they are changed, their revision will be short-lived because they are contrary to federal law and will likely be found unconstitutional." Bopp emphasizes, "judicial candidates and judges should never pledge or promise certain results in a particular case or class of cases. But these rules reach much more broadly than that."

 

 The Indiana Comments are 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.
 

 

Press Release Archive

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