PRESS RELEASE
Thursday, May 8, 2003
Contact: James Bopp, Jr., General Counsel
Phone 812/232-2434; Fax 812/235-3685
madisoncenter@aol.com

 

On Thursday, May 8, the Madison Center filed a motion for injunction pending appeal in the federal district court that is considering the Bipartisan Campaign Reform Act of 2002 (BCRA). The requested injunction would halt enforcement of the BCRA provision that bans ideological corporations, such as National Right to Life Committee (NRLC), from engaging in "electioneering communications."

In its opinion, the district court upheld a broadened back-up definition of "electioneering communication" that goes far beyond anything Congress ever considered or would approve. In fact, its current breadth is breathtaking. The broadening occurred after the trial court struck down the primary definition of "electioneering communication," which banned broadcast references to federal candidates for 60 days before an election (30 before primaries), and then considered the backup definition that Congress had included.

The court amputated part of the backup definition (as too vague), leaving the operative definition of electioneering communication as any broadcast, cable, or satellite communication which 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 candidate).

The operative verbs in the court's truncated backup definition, i.e.,  promote, support, attack, and oppose, are undefined and have a broad range of meanings and connotations. And the Court said that all that had to be done to promote or attack a candidate was to broadcast a communication that is not "neutral," and the court gave as an example an advertisement that criticized a legislator's position on legislation. In other words, simply disagreeing with a candidate's legislative position is attacking or opposing that candidate under the BCRA.

Furthermore, the communication does not have to actually name or even refer to the candidate, only be considered by some enforcement official to be promoting or attacking someone who happens to be a candidate. It is not confined to being about an exhortation to vote (which the amputated clause would have required), nor is it in any way connected to an election campaign. Although it refers to "a candidate," the communicator does not have to know that the person is a candidate. (To be a candidate, simply means one has received a campaign contribution or made a campaign expenditure of $5,000.) Nor must the communication be limited in any way to a candidate's district or state. One could be found to have promoted or attacked a Florida candidate with a communication broadcast in Oregon.

The district court said citizen groups could be safe if they never mention a candidate in a broadcast communication or always get an FEC advisory opinion about their communications first. But these "safe harbors" are totally unworkable and unconstitutional. The operative definition of "electioneering communication" nowhere requires that a candidate be named, only promoted or supported (which could happen without naming). The very notion that Americans public officials can escape the criticism of the American people by declaring themselves candidates is absolutely antithetical to the First Amendment. And the FEC could never issue advisory opinions fast enough to keep up with the fast-breaking, changeable needs of citizen groups engaged in grassroots lobbying.

Since the court's definition is far broader than anything Congress even debated, let alone approved, the district court was without authority to redefine the BCRA's "electioneering communication" definition. On appeal, this new definition is certain to be found unconstitutional.

But in the meantime, groups like NRLC are involved in legislative battles to ban cloning and pass the Unborn Victims of Violence Act and the Partial Birth Abortion ban. These current battles involve television advertisements encouraging constituents to contact their legislator (many are candidates) and express their opposition to the positions of the recalcitrant. Under the district court's neutrality test for attacking and opposing, these attacks on a candidate's positions could be considered attacks on the candidate. So the Madison Plaintiffs are seeing an injunction to halt enforcement of this part of the BCRA while the United States Supreme Court considers the case.

The Madison Center also objects to the National Rifle Association's (NRA) request to the district court to reinstate the primary definition (the 60-day gag period) of "electioneering communication" that the district court has already found unconstitutional in place of the court's redefined backup definition, while the Supreme Court considers the case. The NRA believes this would make the BCRA not in effect until December 2003 (30 days before the Iowa Caucuses and other rolling primaries begin). But there is a Texas runoff election for a congressional seat in June, making the BCRA in effect right now in Texas if the 60-day gag period is reinstated.

Moreover, the Supreme Court is unlikely to have resolved the BCRA appeal by December. The Court normally goes on recess at the end of June and reconvenes in October. Even if the Court set oral arguments early in October, it would only have less than two months to publish its decision before December. The district court took five months to issue its opinions after hearing oral arguments. A similar timetable should be anticipated in the Supreme Court, making the Court's decision date around February. And even if the Court could get a decision published in December, such a late date would heavily burden advocacy groups by depriving them of planning time to promote their issues during the heavy legislative time that occurs during the primaries.

The district court is likely to rule on these and other possible motions for stay or injunction by the end of next week.

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