PRESS RELEASE
Tuesday, June 15, 2004
Contact: James Bopp, Jr., General Counsel
Phone 812/232-2434; Fax 812/235-3685
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Article Outlines Hopeful Future for Campaign Finance "Reform" Litigation
 

In McConnell v. FEC, the U.S. Supreme Court upheld Congress's "electioneering communication" ban in the Bipartisan Campaign Reform Act of 2001 ("BCRA," aka "McCain-Feingold"). That was bad news for the First Amendment. But the good news is that the Court (1) did not abandon its traditional "express advocacy" analysis, (2) left the door open for as-applied challenges, and (3) sowed the seeds for the eventual narrowing and overturning of the decision. That is the analysis of a just-published law review article by Madison Center attorneys James Bopp, Jr. and Richard Coleson.

BCRA's electioneering communication ban prohibits incorporated citizen watchdog groups from broadcasting communications that reference a federal candidate for 60 days before a general election (and for 30 days before primary elections, caucuses, and conventions that select candidates). The effect has been to silence vital communications that are essential to participatory democracy but happen to fall during the gag periods before elections -- such as an ad asking constituents to call their legislator to support pending legislation or to contact the President about vital national issues.

The article is entitled "The First Amendment Is Still Not a Loophole: Examining McConnell's Exception to Buckley's General Rule Protecting Issue Advocacy" and was published in a symposium issue of the Northern Kentucky Law Review dedicated to articles on the McConnell decision and its aftermath. Bopp says of the article that "it shows that there remains hope for people of ordinary means and their citizen groups to participate in the marketplace of ideas, but there is much work to do to restore their liberty."

First, the article demonstrates that the express advocacy test that the Supreme Court created in the 1976 Buckley case and reaffirmed in the 1986 Massachusetts Citizens for Life case retains vitality. The express advocacy test has been the traditional line between what incorporated advocacy groups could and could not do. If such groups published communications that merely discussed issues, even if candidates were discussed shortly before elections, the citizen group could pay for such communications with their own corporate funds. But if the communication contained explicit words expressly advocating the election or defeat of a clearly identified federal candidate, i.e., express advocacy, then the citizen group had to pay for the money with hard-to raise, limited, political committee (PAC) money.

BCRA's electioneering communications ban applies to corporations without regard to whether the communication that names a federal candidate is regulable express advocacy or protected issue advocacy. The Court upheld the ban even though it prohibited some issue advocacy on the theory that the government had demonstrated that electioneering communications were the "functional equivalent" of express advocacy.

By employing this analysis, as opposed to dumping its express advocacy test, the Court retained the vitality of its traditional express/issue advocacy distinction. The Court's analysis limits what the federal and state governments may do. If legislatures wish to regulate communications other than express advocacy or electioneering communications, they will be required to prove by substantial evidence that the targeted activity is the functional equivalent of express advocacy.

Second, the article explains why exceptions for such essential participation by people of ordinary means will likely be carved out of the electioneering communications ban if properly presented to the courts in an "as-applied" challenge. A prime candidate for recognition as an exception would be a communication containing grass-roots lobbying, e.g., "Call Congressman Incumbent and tell him to vote for House Bill X." Another important exception would be for use of sponsor's names in communications describing current legislation (e.g., BCRA was commonly called McCain-Feingold in the Senate or Shays-Meehan in the House). Unfortunately, there is no federal statute providing for attorneys fees to the prevailing party in a successful as-applied challenge to the electioneering communication ban, so the people must bear the burden of challenging vindicating their constitutional rights against BCRA.

Finally, the article explains how the Court employed sleight-of-hand in its legal analysis to uphold the "electioneering communication" ban and how such prestidigitation portends future demise for this limit on the right of the people to associate to pool their resources and speak out on the issues most dear to their hearts and vital to the nation.

A copy of the article in MS Word format may be obtained by email upon request to cbostrom@bopplaw.com.

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