PRESS RELEASE
Friday, May 9, 2003
Contact: James Bopp, Jr., General Counsel
Phone 812/232-2434; Fax 812/235-3685
madisoncenter@aol.com

 

On Thursday, May 8, the U.S. Court of Appeals for the 9th Circuit issued an opinion narrowing its controversial Furgatch test for "express advocacy." This is significant because the test has been used by campaign finance "reformers" as a model for FEC regulations (struck down in several circuits) and as part of the definition for the backup definition of "electioneering communication" in the federal Bipartisan Campaign Finance Reform Act of 2002 (BCRA), which is currently in litigation and on its way to the United States Supreme Court for review.

The United States Supreme Court said in the Buckley (1976) and MCFL (1986) decisions that the government may not regulate corporate expenditures for advocacy of issues ("issue advocacy") but may regulate expenditures for communications that in explicit words expressly advocate the election or defeat of a clearly identified candidate ("express advocacy"). The Furgatch test seemed to broaden this by allowing a court to look beyond the communication itself to the broad context of the communication, and so it was popular with campaign finance "reformers."

In the May 8th decision, in California Pro-Life Council, Inc. v. Getman (CPLC), the 9th Circuit took note of the broad criticism of the Furgatch test by other federal courts and joined those courts that had read the Furgatch test narrowly. The CPLC decision declared: "a close reading of Furgatch indicates that we presumed express advocacy must contain some explicit words of advocacy." (emphasis in original) The 9th Circuit cited the Furgatch statements that (1) "context cannot supply a meaning that is incompatible with, or simply unrelated to, the clear import of the words" and (2) "[c]ontext remains a consideration, but an ancillary one, peripheral to the words themselves."

After narrowly interpreting its Furgatch test to a focus on the words of advocacy, the CPLC court decided that California's definition of "express advocacy," which governed registration and reporting requirements for ideological, non-profit corporations (and other corporations) in California was constitutional because a recent state appellate court had narrowly construed the statutory definition to conform with the narrow interpretation of the Furgatch express advocacy test. The appellate court opinion was issued in Gov. Gray Davis Comm. v. ATA, in which Madison Center General Counsel James Bopp, Jr. was lead counsel for victorious ATA.

Bopp, who also represented CPLC, declares of the CPLC decision:  "This decision cuts the foundation from under many arguments made by so-called campaign finance reformers. It is a great victory for the First Amendment and for citizens who join together in advocacy groups to amplify their voices on critical issues in the marketplace of ideas. It will have broad ramifications in the effort to protect the First Amendment from its attackers."

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