PRESS RELEASE
Friday, Jan. 16, 2004
Contact: James Bopp, Jr., General Counsel
Phone 812/232-2434; Fax 812/235-3685
madisoncenter@aol.com

 

The United States Court of Appeals for the Sixth Circuit today held that the "express advocacy" test is alive and well outside the limited context of the exception for "electioneering communications" recognized by the United States Supreme Court in McConnell v. FEC (2003). The electioneering communication ban (part of the Bipartisan Campaign Reform Act of 2002) prohibited targeted, broadcast communications referencing a federal candidate for 60 days before a general election (30 days before primaries) if paid for by a corporation or labor union.

Challengers to the electioneering communication ban in McConnell argued that it swept in issue advocacy, which was supposed to be protected by the express advocacy test. The Supreme Court had said in Buckley v. Valeo (1976) and Massachusetts Citizens for Life v. FEC (1986) that the "express advocacy" test was necessary whenever a statute was vague or overbroad so as to reach issue advocacy. The Court said that regulable express advocacy was distinguished from issue advocacy by a bright-line test that examined a communication to see if there were explicit words expressly advocating the election or defeat of a clearly identified candidate for federal office.

However, in December 2003, the Supreme Court recognized an exception to the Buckley general rule on express advocacy. McConnell declared that the express advocacy analysis was necessary to prevent vagueness or overbreadth in statutes, but it did not apply where a statute is not vague and is not overbroad because the government has proved that targeted activity is the "functional equivalent" of activity that implicates government interests. Applying this analysis, McConnell declared that the electioneering communication ban was not vague and the government had proved that "sham issue ads" were the "functional equivalent" of express advocacy so that banning such ads was necessary to advance the government interests in preventing corruption in the political system. Application of this McConnell exception and the Buckley general rule was not long in coming.

Today, a unanimous panel of the Sixth Circuit decided, in Anderson v. Spear, that a ban on "electioneering" within a 500-foot buffer zone around polls was vague and overbroad and did not fit the McConnell exception. Consequently, the Buckley general rule was applied.

Plaintiff Anderson argued that "electioneering" swept in issue advocacy as well as express advocacy, including specifically his distribution of instructions to voters on how to cast a write-in vote. The Anderson opinion discussed both Buckley and McConnell and held that "the McConnell Court . . . left intact the ability of courts to make distinctions between express advocacy and issue advocacy, where such distinctions are necessary to cure vagueness and overbreadth in statutes which regulate more speech than that for which the legislature has established a significant governmental interest." The court then "appl[ied] a narrowing construction to the term 'electioneering' and f[ou]nd that it may permissibly apply only to speech which expressly advocates the election or defeat of a clearly identified candidate or ballot measure."

The Anderson court noted that the "electioneering" prohibition had to be narrowed to protect the "displaying of signs or distributing of leaflets which fall into core issue advocacy: that is, promoting issues rather than specific candidates." The court gave an example of a sign declaring "support our schools." The court also decided that the evidence advanced did not show that the overbroad statute was necessary to further the two recognized state interests, preventing voter intimidation and election fraud. In fact, the evidence seemed to show illegitimate motives, i.e., that legislators thought voters just didn't want to be bothered on the way into the polls and poll workers didn't like the clutter of literature dropped by voters after accepting it from candidate advocates.

James Bopp, Jr., Madison Center General Counsel and attorney for plaintiff Anderson, declared that "this clarification by a federal appellate court will go far to clarify the continued vitality of the Buckley general rule on express and issue advocacy and the narrowness of the McConnell exception. It is a timely clarification, arriving just as litigators and courts are sorting out the ramifications of McConnell."

Judge Alice M. Batchelder, for the court, also struck down Kentucky's ban on post-election contributions, finding that, although the measure served an important interest in combating corruption, an outright ban was not "closely drawn to avoid an unnecessary abridgement of associational freedoms" because the anti-corruption interest was amply served by Kentucky's $1,000 limit on all contributions. For similar reasons, the court also struck down Kentucky's ban on candidate's loaning money to their campaigns, and on restrictions on the timing of campaign contributions prior to election day. According to James Bopp, Jr., "this holding follows several recent decisions that have recognized limits on the government's ability to regulate campaign contributions."

In addition, the Court held that a Kentucky requirement that campaigns turn over unexpended contributions and fund transfers to the Commonwealth violated the Constitution's prohibition on taking funds or property from citizens without just compensation. It held that Kentucky's ban on all post-election contributions was not sufficiently narrow and violated the rights of citizens to associate. On similar grounds, the Court struck down Kentucky's bans on cash contributions to governors' campaigns and on candidates loaning their own campaigns more than $50,000. Finally, the Court held that Kentucky's ban on candidates receiving funds within 28 days of an election was unconstitutional as applied to write-in candidates.

The Court did uphold Kentucky's refusal to provide campaign financing to write-in candidates, though it offers campaign financing to candidates on ballots, and a provision of Kentucky law that lifts contribution limits for candidates who receive public financing once their opponents' contributions exceed a certain amount.

The case, Anderson v. Spear, No. 02-5529, was brought by Hobart Ward Anderson, a write-in candidate in Kentucky's 1999 gubernatorial election, and his campaign committee against Kentucky authorities charged with enforcement of Kentucky's election and campaign finance law.  Anderson and his campaign committee appealed to the U.S. Court of Appeals in Cincinnati, Ohio, after being denied relief by the U.S. District Court for the Eastern District of Kentucky at Ashland, Kentucky.

To unsubscribe from the James Madison Center for Free Speech e-mail list, please send an e-mail message with "UNSUBSCRIBE" as the subject to: cbostrom@bopplaw.com.