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PRESS RELEASE South Carolina Regulation of Voter Guides Challenged in Federal Court On October 4, the James Madison Center for Free Speech filed a law suit against the State of South Carolina challenging the constitutionality of limits that the State’s campaign finance laws place on the ability of advocacy organizations to distribute candidate information to voters near election time. The lawsuit was brought on behalf of South Carolina Citizens for Life, a pro-life organization that would like to distribute voter guides before the November election. The name of the case, which was filed in the District of South Carolina, is South Carolina Citizens for Life v. Krawcheck. The lawsuit challenges the constitutionality of applying Political Action Committee ("PAC") regulations to organizations that have the major purpose of advocating on behalf of issues. Under South Carolina law, a PAC is any organization that "to influence the outcome of an elective office, receives contributions or makes expenditures in excess of five hundred dollars in the aggregate during an election cycle." The law defines "influence the outcome of an elective office" to include "any communication made, not more than forty-five days before an election, which promotes or supports a candidate or attacks or opposes a candidate . . . ." Any organization that qualifies as a PAC under South Carolina law must comply with a burdensome set of regulations, which could easily deter small public policy organizations from engaging in any speech activities that could potentially make them a PAC. The Madison Center has attacked the constitutionality of this law on three grounds. First, the Madison Center contends that the statute violates the major purpose test that the U.S. Supreme Court established in Buckley v. Valeo and MCFL v. FEC. In these cases, the Court said that it was only constitutional to apply PAC regulations to organizations that have the major purpose of nominating or electing candidates. South Carolina ignored the major purpose test when it put this law into place, and as a result, the South Carolina definition of PAC unconstitutionally applies to many organizations that do not have the major purpose of nominating or electing candidates. Second, the Madison Center contends that the statute regulates more election related speech than is constitutionally acceptable. In Buckley, the Supreme Court established the express advocacy standard. This standard, which defined what type of election speech the government had a sufficient interest in regulating, only allowed the government to regulate speech that advocated for the election or defeat of a candidate in express terms (i.e. "vote for candidate x"). The Supreme Court recently decided in McConnell v. FEC that the government could also regulate the functional equivalent of express advocacy. South Carolina’s new standard, which determines what speech can be regulated based on whether it promotes, attacks, supports, or opposes a candidate is not even close to the functional equivalent of express advocacy since the new standard does not even require that an organization make any reference to a candidate in order for the speech to potentially put the organization in the position of having to comply with extensive PAC regulations. Third, the Madison Center contends that the statute is unconstitutional under the Due Process Clause because it is vague. The Supreme Court has determined on many occasions that it is unconstitutional to pass laws that lack clear standards because people do not know how to comply with them, and the need for clear standards is even more urgent when First Amendment rights could be threatened by a vague law. The promote, attack, support, or oppose language of South Carolina’s law does not provide organizations with the clear standards that they need to determine whether they must comply with it. James Bopp, Jr., attorney for SCCL, comments: "This case is yet another example of how draconian regulations pose an increasing threat to the most basic right of every citizen to educate the public about the positions of candidates on important issues." The Complaint and Preliminary Injunction Memorandum are available at the James Madison Center for Free Speech website, www.jamesmadisoncenter.org. James Bopp, Jr. has a national campaign finance and election law practice. He is General Counsel for the James Madison Center for Free Speech.
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