WASHINGTON Judge Henry Kennedy of the D.C. District Court will consider whether to issue a temporary restraining order in the case of Hawaii Right to Life, Inc. v. Federal Election Commission on Tuesday, November 25, at 4 p.m.  James Bopp, Jr., James Madison Center general counsel, will ask the Court to grant the temporary restraining order on behalf of Hawaii Right to Life, Inc. ("HRTL").

     HRTL recently filed suit challenging several FEC regulations, including one implementing the Bipartisan Campaign Reform Act of 2002 ("BCRA").  Specifically, HRTL claims that the FEC regulation defining "electioneering communication"violates its First Amendment right to free speech by prohibiting HRTL from engaging in protected issue advocacy during the upcoming special elections in Hawaii.  In addition, HRTL claims that FEC regulations defining "express advocacy" and "qualified nonprofit corporation" also unconstitutionally prohibit HRTL from engaging in issue advocacy under the Supreme Court's decision in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986).

     As a result of Patsy Mink's (D-Hawaii) untimely death shortly before the November 5, 2002 general election, Hawaii will hold two special elections.  The first, set for Nov. 30, is to fill the remaining month of her current term. The second, set for Jan. 4, will fill the new term which begins in January 2003, to which Representative Mink was
elected posthumously.

     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. 

     "The challenged regulations are unconstitutional under Supreme Court precedent," said Bopp.  "Unless the Court grants the temporary restraining order, HRTL will not be able to move forward with its plans run  radio ads giving information about issues and where candidates stand on these issues prior to these elections."  While mentioning
federal candidates, the ads will not contain express words of advocacy.  A temporary restraining order will allow Hawaii Right to Life to engage in its political speech without fear of enforcement of the law.

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