Madison Center Advises BCRA Court of Complaint to FEC Against
Alleged "Electioneering Communication" by Club for Growth

On Thursday, Madison Center attorneys advised the trial court that decided the case challenging the Bipartisan Campaign Finance Reform Act of 2002 (BCRA) that a complaint had been filed with the FEC alleging that Club for Growth (CFG) had violated BCRA's "electioneering communication" ban by broadcasting an ad in support of the President's tax cut plan.

Madison Center attorneys argued that this development strengthened their case for a requested injunction against the "electioneering communication" ban, as construed by the court, while the United States Supreme Court considers the case.

As construed by the court, the BCRA bans any communication that could be viewed as  "promoting or supporting . . . or attacking or opposing" a candidate, even if the candidate is not named, and even if the ad is broadcast outside the candidate's state. The prohibition applies year round to comments about any federal candidate, and incumbents are candidates for long periods of time during key legislative activity. By contrast, the United States Supreme Court held that the government may only regulate such communications if they contain explicit words that expressly advocate the election or defeat of a clearly identified candidate for federal office.

The Democratic Senatorial Campaign Committee (DSCC) filed the complaint alleging that CFG had violated the BCRA by "attacking" Sen. Tom Daschle (D-SD). The ad asked South Dakota citizens to tell candidate Daschle to support President Bush's tax cut plan. The DSCC complaint alleges that the advertisement "attack[s Daschle] for opposing the President's 'tax cut plan'" in violation of the BCRA. The ad is part of a broader campaign of constitutionally-protected speech by CFG that has been run in states where Senators are not supporting the President's tax cut plan.

Other parties in the BCRA lawsuit have asked the trial court to put back in place the primary definition of "electioneering communication" while the case is considered by the Supreme Court. The primary definition, which the trial court struck down as unconstitutional, bans all reference to a federal candidate for 60 days before an election (30 before a primary). These parties believe that this will buy time before the BCRA's "electioneering communication" ban affects them.

But the FEC complaint shows that CFG is affected right now, and putting the 60-day definition back in place will provide no relief to CFG, which is alleged to have violated the ban while the court's broad "attack or support" definition is in place. Only enjoining the broad definition will provide CFG relief from an onerous and frivolous investigation of its activity and protect CFG from having to spend its money for issue ads on legal fees. That is irreparable harm that must be prevented in advance.

Madison Center General Counsel James Bopp, Jr., comments: "This complaint shows how unconstitutionally overbroad the trial court's 'electioneering communication" definition really is. When Americans can't encourage other Americans to challenge incumbent politicians on their opposition to a president's proposed tax cut, the First Amendment and democracy are in serious and imminent danger."

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