[EL] Jim Bopp's press release re CIF v. Tennant
Justin Levitt
levittj at lls.edu
Wed Jul 20 14:37:18 PDT 2011
Following up on the /CIF v. Tennant /case referenced in the post below,
Jim Bopp issued the following press release. It's not yet posted on the
Internet anywhere I can readily find:
From: MadisonCenter at aol.com
To: MadisonCenter at aol.com
Sent: 7/20/2011 3:26:08 P.M. Eastern Daylight Time
Subj: Court Strikes Down Express Advocacy and Electioneering
Communication Definitions
*James Madison Center for Free Speech*
1 South 6th Street
Terre Haute, IN 47807-3510
www.jamesmadisoncenter.org <http://www.jamesmadisoncenter.org/>
**
**
*Press Release
July 20, 2011
*Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr at aol.com
<mailto:jboppjr at aol.com>
*Court Strikes Down Express Advocacy and Electioneering Communication
Definitions*
A federal district court has struck down unconstitutional definitions of
express advocacy and electioneering communications in West Virginia.
West Virginians for Life, Inc., sought to engage in radio ads, mass
mailings, petitions, and newspaper ads addressing pro-life issues
involving a person who was a candidate for the Supreme Court of Appeals
of West Virginia. In some cases, West Virginians for Life actually
engaged in its speech.
The speech did not expressly advocate the election or defeat of any
candidate by using words such as "vote for" or "vote against."
Nevertheless, the speech clearly identified a candidate, and ran or was
to run shortly before an election in areas where West Virginia residents
could vote for the candidate.
West Virginians for Life feared the state would regulate all of its
speech by defining it as "express advocacy" or an "electioneering
communication." Then the organization would have to file reports on all
of the speech with the state.
Worse yet, West Virginians for Life feared the state would define the
organization as a full-fledged political committee, which means
complying with West Virginia's political-committee burdens, such as
registration, recordkeeping requirements, and extensive reporting
requirements.
The court's decision addresses the express-advocacy,
electioneering-communication definition, and political-committee
definitions.
First, the district court limited West Virginia's express-advocacy
definition to how the U.S. Supreme Court defines express advocacy.
The court rejected West Virginia's attempt to define express advocacy by
an "appeal-to-vote" test. Under such a test, West Virginia could have
regulated speech if its only "reasonable interpretation is as an appeal
to vote for or against a specific candidate." The court said such a
test is a vague express-advocacy definition.
Second, while government may regulate broadcast electioneering
communications, the court said West Virginia had not justified
regulating /non/-broadcast electioneering communications.
"The district court followed Supreme Court case law in a way that is a
tremendous victory for free speech," said James Bopp, Jr., general
counsel of the James Madison Center for Free Speech, which brought the
challenges on behalf of West Virginians for Life. "Organizations such
as West Virginians for Life need to be able to engage in non-regulable
speech without fear of fines or imprisonment."
Third, the court held that West Virginians for Life is not a political
committee under West Virginia law. The reason is that supporting or
opposing candidates is not the organization's /sole/ purpose.
This court noted that an organization devoting as little as 1 percent of
its spending to other activities, such as charitable work, is not a
political committee under West Virginia law.
This is so even if it would be constitutional to define the organization
as a political committee under Supreme Court case law.
The action is /West Virginians for Life, Inc. v. Tennant,/ and the
court's decision is available at
http://www.jamesmadisoncenter.org/cases/files/2011/07/Doc-233-SJ-Order.pdf.
/James Bopp, Jr. has a national constitutional law practice with the law
firm of Bopp, Coleson & Bostrom./
-------- Original Message --------
Subject: More news 7/20/11
Date: Wed, 20 Jul 2011 13:35:34 -0700
From: Justin Levitt <levittj at lls.edu>
To: law-election at uci.edu
Summary judgment in /CIF v. Tennant/: three intriguing rulings
<http://electionlawblog.org/?p=20676>
Posted on July 20, 2011 <http://electionlawblog.org/?p=20676> by Justin
Levitt <http://electionlawblog.org/?author=4>
This case is a challenge to West Virginia's campaign finance laws ---
mostly disclosure requirements --- that has been up to the Fourth
Circuit and back, with a few changes to state and federal law in the
interim. On Monday, the district court issued a 92-page opinion
<http://electionlawblog.org/wp-content/uploads/CIF-v-Tennant.pdf> on
summary judgment.
The upshot: the court upholds much of the state's law. But it strikes
down three regulations of particular note. More after the jump.
The court first strikes a portion of the state's definition of express
advocacy, cribbed directly from Justice Robert's opinion in /WRTL II/:
"Expressly advocating" means any communication that . . . is susceptible
of no reasonable interpretation other than as an appeal to vote for or
against a specific candidate." The court finds this language
unconstitutionally vague without the additional distinct triggers of
BCRA (e.g., mentioning a candidate to a certain audience within a
certain time period before an election).
Second, the state's inclusion of non-broadcast media in defining
"electioneering communications" for disclosure purposes.
And third --- probably most important --- the court strikes down a
disclosure requirement for significant contributors to an organization
making electioneering communications, whether or not those contributions
are earmarked for ads. The court essentially decides that only those who
earmark can be required to disclose --- following the FEC's highly
controversial <http://electionlawblog.org/?p=17974> federal regulation.
Interesting. And all likely candidates for appeal.
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20676&title=Summary%20judgment%20in%20%3Ci%3ECIF%20v.%20Tennant%3C%2Fi%3E%3A%20three%20intriguing%20rulings&description=>
Posted in campaign finance <http://electionlawblog.org/?cat=10> |
Comments Off
--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110720/65d4aac9/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/png
Size: 1520 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110720/65d4aac9/attachment.png>
View list directory