Federal Election Commission Agrees to Permanent Injunction
Regarding Hawaii Special Elections
 

WASHINGTON  The Federal Election Commission has agreed to make permanent the terms of a preliminary injunction issued November 26, 2002.  The grant of the preliminary injunction reiterated the First Amendment's protection of issue advocacy in general, and speech by MCFL-type not-for-profit ideological corporations in particular.

U.S. District Judge Henry H. Kennedy Jr. of the District of Columbia granted a preliminary injunction to Hawaii Right to Life, Inc., that allowed it to run issue ads for the Nov.  30 special election to fill the remainder of the current term of U..S Rep. Patsy Mink, who died Sept. 25 but remained on the Nov. 5 ballot and was re-elected.  The injunction also permitted Hawaii Right to Life to run issue ads for the Jan. 4 special election to fill the term Mrs. Mink was to begin in January.

Because new FEC regulations enacted following the passage of the Bipartisan Campaign Finance Reform Act of 2002, commonly known as McCain-Feingold or Shays-Meehan, ban all corporations from engaging in "electioneering communications," defined as any broadcast ad that mentions the name of a candidate within 60 days of an election, Hawaii Right to Life was forced to file suit so that it could run issue ads regarding the pro-life positions of candidates.  The FEC regulations would have prohibited Hawaii Right to Life's issue advocacy, despite Supreme Court holdings that issue advocacy is always protected under the First Amendment.

Judge Kennedy held that Hawaii Right to Life is an MCFL-type not-for-profit ideological corporation, despite the fact that it engages in limited business activities and receives limited donations from business corporations contrary to the FEC regulation.  As an MCFL-type corporation, Hawaii Right to Life has a First Amendment right to be exempt from regulation of its political speech, including "electioneering communications."

"We are very pleased that the FEC has agreed to a permanent injunction," said James Bopp, Jr., general counsel for the James Madison Center for Free Speech.  "The fact that our client, a group that has $8,000 worth of income in a year, had to ask a federal court's permission to mention the name of a candidate in its advertising is simply unbelievable," said Bopp, "Issue advocacy groups such as Hawaii Right to Life play a vital role in the political process by informing the American people of the candidates' positions on issues of importance."

In FEC v. Massachusetts Citizens for Life ("MCFL"), the U.S. Supreme Court held political speech by not-for-profit ideological corporations could not be prohibited (hence "MCFL-type" corporation).  MCFL specifically held that the First Amendment protects independent expenditures by such corporations.  This month the Supreme Court agreed to consider in FEC v. Beaumont whether the First Amendment also protects contributions to candidates by such corporations, subject to contribution limits.  The U.S. Court of Appeals for the Fourth Circuit held that the First Amendment does protect such contributions.  Oral argument in Beaumont is expected in March, with a decision by June.

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