James Madison Center for Free Speech
1747 Pennsylvania Avenue, NW., Suite 1000
Washington, DC 20006
www.jamesmadisoncenter.org

PRESS RELEASE

Thursday, May 22, 2003
Contact: James Bopp, Jr., General Counsel
Phone 812/232-2434; Fax 812/235-3685
madisoncenter@aol.com

Madison Center Asks Chief Justice to Protect Rights
While Supreme Court Considers BCRA

On Thursday, May 22, Madison Center attorneys filed two special applications in the United States Supreme Court, asking Chief Justice Rehnquist to protect the rights of its clients while the Court is considering appeals from the constitutional challenge to the Bipartisan Campaign Finance Reform Act of 2002 (BCRA). The Chief Justice may decide such applications or refer them to the full Court.

One application asked the Chief Justice vacate the trial court's blanket "stay" of its judgment, meaning that whatever the trial court decided would not go into effect while the Supreme Court considered the case, even though many BCRA provisions were held unconstitutional. The stay would allow provisions already held unconstitutional to remain in effect until the Supreme Court completes its review of the case, which could possibly be in the spring of 2004. In particular, the Madison Center asked the Chief Justice to vacate the trial court's stay as to three particularly problematic provisions for Madison Center Plaintiffs.

First, the Madison Center asked the Chief Justice to vacate the stay against the trial court's holding that the primary "electioneering communication" definition, which prohibits citizen groups from broadcasting communications that even name a federal candidate for 60 days before an election (30 for primaries), is unconstitutional. The trial court's stay put this unconstitutional definition back into effect. With a June runoff federal election in Texas, the provision is already operational there. And rolling caucuses and primaries will trigger 30-day blackout periods across the country beginning in December and continuing throughout the spring. During those weeks and months while the Supreme Court prepares its opinion, citizen groups will be barred from broadcasting ads asking citizens to call Senator X or Representative Y (most will be "candidates") and ask him or her to support the President's tax cut plan (or whatever legislation is currently hot)

Second, the Madison Center asked the Chief Justice to vacate the stay against the trial court's holding that BCRA's ban on minors making contributions to candidates or political parties is unconstitutional. Even though the three trial judges unanimously decided such a ban is unconstitutional, they allowed it to go into effect again with the stay of their decision. One Madison Center Plaintiff is a minor who said he wanted to contribute to his Sunday School teacher who had become a congressional candidate. Another is an officer in the Libertarian Party, but if he can't pay his annual $25 dues to the party, he can't be an officer.

Third, the Madison Center asked that the stay be vacated as to the holding that BCRA's ban on political parties receiving so-called "soft money" is unconstitutional unless the money is for attacking or opposing a candidate. The Libertarian National Committee, a Madison Center client, is prohibited by the district court's stay from receiving money that the trial court said it could lawfully receive.

The other application to the Chief Justice, asked him to also enjoin enforcement of BCRA's ban on corporate "electioneering communications" using the backup ban that Congress passed in the likely event the primary 30/60-day blackout definition was declared unconstitutional (as it was). The backup definition, as construed by the court, 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.

This backup "electioneering communication" definition was in effect from May 1until the trial court stayed its judgment on May 19. During that time Madison Center Plaintiff Club for Growth was running ads in support of the President's tax cut plan. The Democratic Senatorial Campaign Committee (DSCC) filed a complaint with the Federal Election Commission, alleging that CFG had violated 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 alleged that the advertisement "attack[s Daschle] for opposing the President's 'tax cut plan'" in violation of the BCRA. The ad was 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. The Chief Justice was asked to issue an injunction pending appeal against any enforcement of BCRA using the "support or attack" definition of "electioneering communication."

These requests were first made to the district court, which refused to grant them, making the present applications to the Chief Justice the last line of defense for the constitutional rights of these parties before having to wait months to have their rights vindicated by the Supreme Court.

Madison Center General Counsel James Bopp, Jr., comments: "We've simply asked the Chief Justice to protect the rights of our clients to participate in the marketplace in the free and open way the Framers of our Constitution intended when they decreed that 'Congress shall make no law . . . abridging the freedom of speech.' If Americans can't ask other Americans to ask incumbent politicians to support the President's tax cut, the First Amendment is in clear and present danger."


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-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com