PRESS RELEASES from James Madison Center for Free Speech

527 Group Files Suit Against the Federal Election Commission
Challenging Restrictions on Issue Advocacy About Barack Obama

Today, The Real Truth About Obama, Inc. ("RTAO") filed suit in federal court against the Federal Election Commission and the Department of Justice to enjoin them from enforcing various FEC rules in order for it to engage in issue advocacy about Barack Obama's position on abortion and other issues.

RTAO was formed to tell the American people the real truth about Senator Obama's public policy positions.  Its first project is about Obama's radical pro-abortion views and voting record. However, RTAO fears that it will be deemed a federal PAC, if it does the project, because of the FEC's enforcement actions arising out of the 2004 election where various issue-advocacy 527s, such as the Swift Boat Veterans for Truth, were fined for failure to register as a federal PAC, even though they only engaged in issue advocacy.  The FEC and the Department of Justice have threatened to do the same this year.

In Wisconsin Right to Life, Inc. v. Federal Election Commission ("WRTL II"), the United States Supreme Court described issue advocacy: "Issue advocacy conveys information and educates. An issue ad's impact on an election, if it exists at all, will come only after the voters hear the information and choose--uninvited by the ad--to factor it into their voting decisions."

According to James Bopp, Jr., lead attorney for The Real Truth About Obama, " Issue advocacy cannot be regulated by the FEC, and groups that engage in it cannot constitutionally be required to register as federal PACs.  The FEC's enforcement actions arising out of the 2004 election were outrageously unconstitutional, and we hope that this lawsuit will to put a stop to a repeat in 2008."

RTAO's abortion information project includes a website, www.TheRealTruthAboutObama.com, and a radio ad called Change. That domain name is reserved, but the website is not operational due to the FEC's enforcement policies, which prevent RTAO from even raising money for the project. The Change ad sets out Senator Obama's position on abortion, but contains no express words of advocacy of his election or defeat, such as "vote for" or "defeat."

RTAO is an issue-advocacy 527 corporation, meaning that it is a nonprofit "political organization," under § 527 of the Internal Revenue Code. It is based in Richmond, Virginia. RTAO's articles of incorporation specify that its "primary and specific purposes" are "[t]o provide accurate and truthful information about the public policy positions of Senator Barack Obama," "to engage in non-partisan voter education, registration and get out the voter activities," and "to engage in any activities related to federal elections . . . authorized by . . . Section 527." RTAO's articles specifically prohibit it from "(a) expressly advocat[ing] the election or defeat of any clearly identified candidate for public office; or (b) mak[ing] any contribution to any candidate for public office."

RTAO's Complaint challenges three FEC regulations and an FEC enforcement policy. First, RTAO challenges 11 C.F.R. § 100.22(b), which is the FEC's secondary "express advocacy" definition. In WRTL II, every member of the U.S. Supreme Court recognized that "express advocacy" requires the so-called "magic words," such as "vote for" or "defeat" (which the FEC's primary definition, at 11 C.F.R. § 100.22(a), requires). Yet the FEC continues to enforce its vague and overbroad rule defining "express advocacy," even where the communication does not contain such explicit words. If an ad is deemed to contain express advocacy, it becomes an "independent expenditure," which is forbidden to corporations, such as RTAO, must be reported to the FEC, must contain a disclaimer, and can trigger PAC status.

Second, RTAO challenges 11 C.F.R. § 100.57(a), which says that, if a group solicits donations to use to "support or oppose the election of a . . . candidate," then those donations will be considered "contributions" under federal law. Permissible "contributions" under federal law are limited in various ways, such as to their source and amount, and receiving "contributions" can trigger PAC status. Also, a group can only solicit "contributions" by using "Federal funds." So if a group finds out, after the fact, that its solicitation for donations were actually for "contributions," it would mean that it had violated several provisions of federal law.

Third, RTAO challenges the FEC's PAC status enforcement policy (published in two FEC notices in the Federal Register and used to find several issue-advocacy 527s in violation of federal law for failing to register as federal PACs). This policy first uses the two provisions already described (11 C.F.R. §§ 100.22(b) and 100.57(a)) to meet the statutory trigger of $1,000 in "expenditures" or "contributions" for PAC status. Then the policy uses a vague and overbroad interpretation of the U.S. Supreme Court's major-purpose test in order to deem certain groups to be federal PACs.

Finally, RTAO also challenges 11 C.F.R. § 114.15, which is the FEC's rule purporting to implement WRTL II's appeal-to-vote test, which protects issue advocacy by limiting the corporate prohibition on "electioneering communications."

James Bopp, Jr., counsel for RTAO, states: "The U.S. Supreme Court has recently reaffirmed the constitutional protection for issue advocacy. The FEC, however, refuses to change its regulations and enforcement policy to conform with that mandate. Instead, the FEC plans to use its complicated PAC enforcement policy, developed in 2004, to punish groups for engaging in issue advocacy. This is unconstitutional, and we hope the federal courts will put an end to it."
 
A copy of the Complaint and preliminary injunction motion, also filed today, 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.

September 25, 2008
Contact: James Bopp, Jr.

Real Truth About Obama, Inc. Files Appeal Brief

Today, The Real Truth About Obama, Inc. ("RTAO") filed its appeal brief in the Fourth Circuit, appealing a district-court denial of a preliminary injunction against the Federal Election Commission and the Department of Justice that would have permitted RTAO to raise funds and broadcast ads discussing Barack Obama's positions on abortion. RTAO has also asked the Fourth Circuit for an injunction pending appeal and that the appeal be expedited.

RTAO is an issue-advocacy 527 corporation formed to tell the American people the real truth about Senator Obama's public policy positions. Its first project is about Obama's radical pro-abortion views and voting record. RTAO does not expressly advocate the election or defeat of any candidate, but rather only does issue advocacy. The Supreme Court has stated that issue advocacy is constitutionally protected as it "conveys information and educates. An issue ad's impact on an election, if it exists at all, will come only after the voters hear the information and choose--uninvited by the ad--to factor it into their voting decisions." Wisconsin Right to Life, Inc. v. Federal Election Commission ("WRTL II"). Nonetheless, RTAO feared that if it would broadcast its issue ads on Obama's position on abortion, it would be punished by the FEC and DOJ for violating campaign finance laws.

RTAO filed suit on July 30 challenging FEC regulations that unconstitutionally restrict RTAO's ability to engage in issue advocacy. After the 2004 election, the FEC adopted an enforcement policy where it would deem 527 groups to be federal political action committees if they praised or criticized federal candidates on issues. Several groups, including the Swift Boat Veterans for Truth, were severely fined. RTAO alleged in its suit that the FEC's complex scheme on PAC status violated numerous Supreme Court decisions.

Specifically, RTAO first challenged the FEC's flawed alternative definition of express advocacy, 11 C.F.R. § 100.22(b), which the FEC has used to prohibit groups like RTAO from participating in protected issue advocacy. Second, RTAO challenged the FEC's regulation dealing with solicitation of donations, 11 C.F.R. § 100.57(a), which permits the FEC to regulate donations made for issue advocacy. Third, RTAO challenged the FEC's PAC status enforcement policy, which requires issue advocacy groups like RTAO to register as political committees. And fourth, RTAO challenged 11 C.F.R. § 114.15, which is the FEC's vague rule purporting to implement WRTL II's appeal-to-vote test, which test was created to protect issue advocacy by limiting the corporate prohibition on "electioneering communications."

"The fact that the FEC said that one of RTAO's ads is not express advocacy, but the district court judge says that it is, illustrates that the FEC's express-advocacy rule is unconstitutionally vague," states James Bopp, Jr., lead attorney for The Real Truth About Obama. "The FEC is, in the words of the Fourth Circuit, 'handing out speeding tickets without telling anyone what the speed limit is,'" he adds.

The case is titled The Real Truth About Obama, Inc. v. FEC et al., Case No. 3:08-cv-00483-JRS. 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.