PRESS RELEASE from James Madison Center for
October 3, 2008
Contact: James Bopp, Jr.
Committee for Truth in Politics Seek Preliminary Injunction
Today, the Committee for Truth in Politics, Inc. (“CTP”) filed suit to protect it from FEC investigation and enforcement action for running an ad, titled Basic Rights, which qualifies as an “electioneering communication” under federal election law, but cannot be regulated because it is protected by the “appeal-to-vote” test announce by Chief Justice Roberts in the 2007 decision of Federal Election Commission v. Wisconsin Right to Life ("WRTL II").
The text of the ad is as follows:
Announcer: Senator Obama.
Why did you vote against protecting infants that survived late term abortions?
Not once, but four times.
Even Congress unanimously supported protections identical to those you blocked in Illinois.
The Supreme Court upheld the ban on partial birth abortions.
And yet today, you keep working to roll back this law.
Call Senator Obama. Tell him to stop trying to overturn these basic human rights.
The Committee for Truth in Politics is responsible for the content of this advertising.
(The ad, without the disclaimer, can be viewed at http://www.youtube.com/watch?v=CrtOBespwYg) The ad may not be prohibited because the Supreme Court held in “WRTL II” that broadcast ads that are “electioneering communications” under McCain-Feingold, because they mention the name of a federal candidate within 60 days of a federal election, may not be banned if they “may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate.” Basic Rights contains no such “appeal to vote,” but is a grassroots lobbying ad on a public issue addressed to an incumbent public official.
Under WRTL II’s constitutional analysis, compelled reporting is also unconstitutional as to ads that may not be prohibited because they do not have an “appeal-to-vote.” WRTL II was applying the First Amendment principle, recognized by the Court in Buckley v. Valeo (1976), that all campaign-finance laws must be “unambiguously related to the campaign of a particular federal candidate” and this principle has been applied to both prohibitions and disclosure requirements.
WRTL II applied this principle by requiring that “electioneering communications” comply with the appeal-to-vote test. As a result, this ad cannot be prohibited nor subject to any other regulation, including compelled disclosure. The ad has been broadcast in Wisconsin, Pennsylvania, and North Carolina, and the suit was filed in the U.S. District Court for the Eastern District of North Carolina.
The suit also challenges the FEC’s ad hoc standards for determining whether a group may be treated as a political committee (“PAC”), under which PAC-enforcement policy the FEC has engaged in intrusive and unauthorized investigations of groups to determine whether they might be PACs based on vague and overbroad criteria.
James Bopp, Jr., lead attorney for CTP in this litigation, comments: "The fact that CTP feels compelled to proceed without the protection of a preliminary injunction before speaking is an indication of the fact that many courts have failed to vigorously protect First Amendment rights with timely preliminary injunctions in advance of a group’s speech. But the First and Fifth Amendments protect CTP. It is a sad reflection on the state of our freedoms today that CTP has to sue for protection that should already be recognized. As to the FEC’s standards for determining political committees, the FEC is, in the words of the Fourth Circuit, 'handing out speeding tickets without telling anyone what the speed limit is.'"
The case is titled Koerber v. FEC. Case documents are available on the website for the James Madison Center for Free Speech at www.jamesmadisoncenter.org.
James Bopp, Jr. has a national constitutional law practice with the law firm of Bopp, Coleson & Bostrom.