The federal "campaign-finance reform" law faces a new lawsuit in federal court, filed today by the James Madison Center for Free Speech. Hawaii Right to Life, Inc., is challenging the definition of "electioneering communication" in the new law, commonly known as McCain-Feingold or Shays-Meehan.  The law went into effect Nov. 6, and Hawaii Right to Life today asked the court to grant a temporary restraining order and a preliminary injunction, immediately enjoining the law.
Eleven other lawsuits have already been filed against McCain-Feingold, but Hawaii Right to Life has sought immediate relief.  It seeks to engage in political speech before upcoming special elections in Hawaii.

The two  special elections are each for Hawaii's second congressional district.  U.S. Rep. Patsy Mink, D-Hawaii, represented the district for many years and died just before the Nov. 5 election.  Mrs. Mink remained on the ballot and won re-election.

A special election to fill the rest of her current term is set for Nov. 30.  A second special election is set for Jan. 4.  In the second election, voters will choose a representative for the full term beginning in January.

Issue Advocacy
Hawaii Right to Life seeks to engage in issue-oriented speech in advance of both elections.  It seeks to do paid radio ads and weekly radio shows giving information about issues and where candidates stand on these issues.  While mentioning federal candidates, the ads and shows will be only "issue advocacy," not "express advocacy." 

The U.S. Supreme Court has held, beginning in 1976, that express advocacy is limited to "communications that in express terms advocate the election or defeat of a clearly identified candidate," using terms "such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' (or) 'reject.'"   The high court has held that government may never regulate issue advocacy. 

Nevertheless, McCain-Feingold regulates issue advocacy.  It does so by regulating any "electioneering communication."  An "electioneering communication" is defined as a broadcast, cable, or satellite communication that (1) "refers to a clearly identified candidate for Federal office," and (2) is made in the 60 days before a "general, special, or runoff election for the office sought by the candidate," or in the 30 days before "a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate," and (3) "is targeted to the relevant electorate."  A backup provision, in case the primary definition is unconstitutional, defines "electioneering communication" as a broadcast, cable, or satellite communication that "promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candi A temporary restraining order and a preliminary injunction will allow Hawaii Right to Life to engage in its political speech without fear of enforcement of the law.

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