James Madison Center

James Madison Center for Free Speech

1 South 6th Street

Terre Haute, IN 47807

www.jamesmadisoncenter.org

PRESS RELEASE
Tuesday, January 26, 2010
Contact: James Bopp, Jr.
Phone: 812/232-2434; Fax: 812/235-3685; jboppjr@aol.com

Madison Center Asks FEC To Change Regulations Following Citizens United

The James Madison Center for Free Speech is asking the Federal Election Commission to revise its regulations in light of the Jan. 21 landmark Supreme Court decision.

The decision, Citizens United v. FEC, recognizes that federal law banning particular corporate and union spending for political speech is unconstitutional.

The James Madison Center’s rulemaking petition, filed today, asks the FEC to state that it will not enforce the unconstitutional bans against any independent spending for political speech, including independent expenditures and electioneering communications. The petition also asks the FEC to:

Repeal FEC regulations insofar as they implement the bans Citizens United struck down.
Acknowledge that the unconstitutional law no longer bans corporations, unions, or membership organizations from engaging in independent spending for political speech beyond people such as union members or corporate board members, stockholders, executive personnel, or administrative personnel.
Repeal the FEC regulations recognizing exceptions to the bans on (1) corporate independent expenditures and (2) corporate and union electioneering communications. The exceptions are no longer necessary, because the bans themselves are unconstitutional.

“This is an election year. Speakers will want to exercise the First Amendment rights to political speech Citizens United recognizes, so the FEC should adopt these regulations quickly, ” said James Bopp, Jr., general counsel for the James Madison Center.

The rulemaking petition is available at JamesMadisonCenter.org.

PRESS RELEASE
Tuesday October 20, 2009
Contact: James Bopp, Jr.
Phone: 812/232-2434; Fax: 812/235-3685; jboppjr@aol.com

U.S. Supreme Court Prevents Release of Referendum Petitions in Washington

Today, a full panel of the Supreme Court of the United States, in an 8-1 vote, issued an order preventing the Washington Secretary of State from releasing the names, addresses, and other personal information of over 138,000 individuals that signed a referendum petition that seeks to protect traditional marriage in Washington. The order will prevent several groups from making this personal information available on the internet and should protect the petition signers from the harassment similar to what occurred in California last November during the campaign surrounding Proposition 8.

James Bopp, Jr., lead counsel for Protect Marriage Washington, the group that had asked the Court to prevent the release of the names, stated, “The Supreme Court took a large step forward today in protecting the rights of citizens who support a traditional definition of marriage to speak freely. No citizen should ever have their personal property destroyed or receive death threats for exercising their right to engage in the political process. The First Amendment protects citizens from government compelled disclosure of their identity when they are engaged in political speech. The Supreme Court seems to recognize the gravity of this situation and we look forward to their review of the case on appeal.”

On September 10, 2009, the U.S. District Court for the Western District of Washington issued an order preventing the release of the names of the petition signers. On October 15, 2009, the Ninth Circuit issued a single page order allowing the release of the names. The Supreme Court’s order will prevent the release of the names until Protect Marriage Washington has an opportunity to present their appeal to the Supreme Court.

James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.

PRESS RELEASE
Friday, September 11, 2009
Contact: James Bopp, Jr.
Phone: 812/232-2434; Fax: 812/235-3685; jboppjr@aol.com

Court Stops Release of Petition Signers in Washington: Court Enters Order Preventing the Secretary of State from Releasing Copies of the Referendum 71 Petition

Yesterday, a United States District Court Judge entered an order preventing the Washington Secretary of State from releasing the names of people who have signed a referendum petition, seeking to protect traditional marriage in Washington. This order will stop several groups from using the petitions to harass and intimidate individuals who were merely exercising their First Amendment right to sign a petition.

Protect Marriage Washington asked the Court to prevent the release of the names of the petition signers, arguing that the First Amendment allows them to sign a petition without having to publicly release their names, and the Court agreed. Protect Marriage Washington provided the Court with many instances where people who support traditional marriage have had their property destroyed, received harassing phone calls, and even been subject to death threats, merely because of their support for traditional marriage.

James Bopp, Jr., lead counsel for the Plaintiffs stated, “The federal court has taken a welcome step toward protecting citizens who simply want to participate in our democratic process and have their public policy positions considered by the people. No one should have to suffer vandalism and death threats just because they support government protection of traditional marriage. Keeping the petition signatures confidential will protect these people from the harassment and intimidation that has now so frequently characterized the response of the gay rights lobby.”

The Washington Secretary of State argued that the names had to be released because of the Washington Public Records Act. The groups who sought the release of the names of the petition signers under this Act included several groups who wished to place the petitions on the internet, so that people could easily access the names and addresses of those who signed the petition in order to threaten, harass, and intimidate those individuals.

This situation in Washington is part of a larger, concerted campaign of harassment and intimidation of supporters of traditional marriage by the gay rights lobby. The campaign has involved gaining access to the names of pro-marriage supporters, posting their names and addresses on the Internet, and inviting people to contact them. This has triggered hundreds of cases of harassment, vandalism and threats of violence directed at marriage supporters throughout the nation. Such personal attacks occurred in large numbers after the adoption of Proposition 8 in California last November.

The order preventing the release of the names of the petition signers will remain in effect until the Court makes a permanent ruling.

The case is before the Honorable Judge Benjamin H. Settle in the United States District Court for the Western District of Washington, at Tacoma. The case number is 3:09-cv-05456-BHS. Attorney Stephen Pidgeon (Bellevue, WA), an Alliance Defense Fund Allied Attorney, is serving as local counsel in the case.

PRESS RELEASE
August 20, 2009
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

Vermont Right to Life files federal lawsuit against Vermont Campaign Finance Law which Regulates VRLC as a Political Committee, Requires Identification on Electioneering Communications, and Requires Reporting of Mass Media Activities

Vermont Right to Life has filed suit to strike down three Vermont campaign finance laws which violate the First Amendment by regulating VRLC as a political committee, requiring identification on electioneering communications, and requiring reporting of mass-media activities.

Vermont Right to Life Committee Inc., wants to distribute its newsletter, distribute pamphlets and a petition, run radio ads, and do mass e-mail and a mass mailing opposing physician-assisted suicide.

Yet VRLC fears these communications will bring serious consequences under Vermont law.

Political Committee Definition

First, VRLC fears that doing any of its planned communications would convert it into a political committee under Vermont law. That means VRLC would have to bear all the burdens Vermont places on political committees. These include registering with the state, designating a treasurer, recordkeeping, limits on contributions received, extensive reporting, and termination requirements.

VRLC asks that the court hold that these burdens are unconstitutional. The reason is that the major purpose of VRLC is not nominating or electing, candidates for state or local office in Vermont. Thus it violates the First Amendment to impose these serious burdens on VRLC.

Electioneering Communication

Second, VRLC's communications are deemed an "electioneering communication" under Vermont law, so the speech would have to include (1) VRLC's name, (2) VRLC’s address, and (3) the name of the candidate, party, or political committee by or on whose behalf VRLC fears Vermont will say the speech is published. Some of VRLC's speech - such as its future newsletters, mass e-mail, pamphlet, and petition - will include (1) and (2) but not (3). Other VRLC speech, such as its radio ads, will include (1) but not (2) or (3), because, for example, VRLC does not want to use precious air time for this information.

Third, some of VRLC's speech is a "mass-media activity" under Vermont law, so VRLC would have to report the speech as a political committee would.

VRLC asks that the court hold the electioneering-communications and mass-media-activities definitions and requirements unconstitutional, because they regulate speech that Vermont may not regulate.

PAC Reporting of Contributions

Meanwhile, one of VRLC's PACs, the Fund for Independent Political Expenditures, asks that the court hold unconstitutional both the limits on the contributions it receives and the requirement that it report the name and address of anyone who contributes more than $100 to VRLC-FIPE.

“This Vermont law regulating VRLC’s speech is unconstitutional, because VRLC’s speech is not unambiguously related to the campaigns of state or local candidates in Vermont,” said James Bopp, Jr., counsel for VRLC and VRLC-FIPE. “In addition, the Vermont law regulating VRLC and VRLC-FIPE is constitutional in part because it is vague and in part because it fails constitutional scrutiny.”

Background

VRLC, a non-profit corporation exempt from federal income taxation, is a non-sectarian and non-partisan organization and is not connected with any political candidate or political party. Nor is it connected with any political committee other than its own. VRLC distributes educational material; has organized county chapters; publishes its regular newsletter; and enlists the help of key contacts, speakers, and volunteers across the state.

VRLC-FIPE is an organization that does only independent expenditures. That is, it expressly advocates the election of candidates for state or local office in Vermont without coordinating the speech with such candidates. It makes no contributions to such candidates.

The action is Vermont Right to Life Committee, Inc. v. Sorell in the United States District Court for the District of Vermont. The complaint and preliminary-injunction brief are at www.jamesmadisoncenter.org.

James Bopp, Jr. has a national constitutional law practice with the law firm of Bopp, Coleson & Bostrom.

PRESS RELEASE
August 18, 2009
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

Petition for Full Court Rehearing Filed in Real Truth About Obama v. FEC

Yesterday, The Real Truth About Obama (“RTAO”) asked the full Fourth Circuit to rehear an appeal after a three-judge panel of the Court upheld the denial of a preliminary injunction that would have permitted RTAO to engage in planned issue advocacy.

The case began in July 2008, when a group of citizens formed RTAO because they wanted to provide accurate and useful information about the public policy positions of then-candidate Barack Obama. An ad that RTAO wanted to broadcast, entitled Change, explained his positions related to the abortion issue. It was issue advocacy because it discussed public issues but did not expressly advocate the election or defeat of any candidate. RTAO also planned a website and had a solicitation letter it wanted to distribute to raise money for its planned issue advocacy.

However, if RTAO had proceeded, it was in danger of an enforcement action and civil and criminal penalties because the FEC had three rules that would have put RTAO at risk for noncompliance as to its planned communications. These rules defined regulable “express advocacy,” “electioneering communications,” and “contributions” in ways that RTAO thought inconsistent with United States Supreme Court and Fourth Circuit precedents (RTAO was in Virginia and so in the Fourth Circuit). RTAO was also at risk for being in violation of an FEC enforcement policy for identifying groups on which to impose the burdens of “political committee” status. Again, RTAO believed the policy to be in violation of Supreme Court and Fourth Circuit precedent.

So RTAO filed a constitutional challenge to the three rules and the policy in RTAO v. FEC. In order to speak while the prolife issue was a matter of hot public debate, RTAO asked for a preliminary injunction to protect its speech. The district court denied the motion, holding that RTAO was unlikely to be able to show that it would win on its constitutional challenge, and so it did not meet the other requirements for a preliminary injunction, such as irreparable harm.

As to the likely constitutionality of the challenged provisions, RTAO had argued that they were inconsistent with the Fourth Circuit’s decision in North Carolina Right to Life v. Leake (2008) and Supreme Court decisions interpreted and applied in Leake.

In Leake, the Fourth Circuit recognized the constitutional principle that campaign-finance laws may only regulate First Amendment activity that is “unambiguously campaign related,” and that this principle is implemented by bright-line, speech-protective tests. This principle was first set out by the United States Supreme Court in Buckley v. Valeo (1976), where the Court applied the principle to limit the scope of regulable “expenditures,” “contributions,” and “political committees” (“PACs”). The Court applied the unambiguously-campaign-related principle as a threshold requirement before engaging in the applicable constitutional scrutiny.

As to communications, Leake recognized that under this principle only two types may be regulated in the campaign-finance context: (1) express advocacy of the election or defeat of a clearly identified candidate and (2) “electioneering communications” (broadcast ads identifying candidates near elections) that can only be interpreted as containing an “appeal to vote.”

As to PAC status, Leake held that it could only be imposed on groups having the major purpose of nominating or electing candidates and that “the major purpose” “is best understood as an empirical judgment as to whether an organization primarily engages in regulable, election-related speech.”

The district court rejected the unambiguously-campaign-related analysis, along with the interpretation of what may be considered a “contribution” that it mandates. It said that RTAO was unlikely to succeed on its challenge to regulation of communications that did not comply with the two types that Leake said were regulable. And it said that RTAO was unlikely to succeed on its challenge to the FEC’s PAC-status enforcement policy that differed from Leake’s holding as to what is required to impose PAC status.

RTAO appealed the denial, seeking to obtain protection for its planned activity while the issue was still in public debate. RTAO explained to the Fourth Circuit three-judge panel that the district court opinion was inconsistent with controlling precedents and that it had ignored the First Amendment context in applying the preliminary-injunction standards. It also asked the Fourth Circuit to clarify that speech-protective standards are required in free-speech cases.

RTAO did not get timely relief from the Fourth Circuit panel enabling it to speak when the issue was hot. A decision affirming the district court’s denial of preliminary injunction was issued on August 5, 2009. The panel held that RTAO was unlikely to be able to show that the challenged provisions were unconstitutional and so it was also unlikely to be able to show irreparable harm (i.e., if the challenged provisions were likely constitutional then RTAO would not be harmed by simply complying with them). The Court also applied a very strict standard for preliminary injunctions that it held was required by a recent Supreme Court decision on the subject.

As a result, RTAO has now asked the full Fourth Circuit to rehear the case and reverse the district court decision. In its petition, RTAO argued that the panel decision was wrong as to (1) whether the challenged provisions were likely unconstitutional, especially because it did not follow the Fourth Circuit’s Leake decision, and (2) as to the high preliminary injunction standard that it imposed in this First Amendment context. RTAO asked the full Fourth Circuit to take this opportunity to clearly mandate speech-protective preliminary injunction standards for First Amendment cases.

James Bopp, Jr., counsel for RTAO, makes the following statement concerning the case: “The Fourth Circuit in North Carolina Right to Life v. Leake set out a clear constitutional analysis that brought order to much of the chaos in campaign-finance law. By not following this binding precedent, the appellate panel in the present case created confusion and chilled free political speech. The full Fourth Circuit should rehear this appeal to remove the confusion, protect free speech, and comply with binding United States Supreme Court precedent.”

The petition is available at www.jamesmadisoncenter.org under “The Real Truth About Obama v. FEC.”

PRESS RELEASE
Wednesday, July 29, 2009
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

Court Enters Temporary Restraining Order Preventing the
Secretary of State from Releasing Copies of the Referendum 71 Petition;
Wants to Hear Protect Marriage Washington’s Case

At a hearing on July 29, 2009, a United States District Court Judge entered an order preventing the Washington Secretary of State from publicly releasing copies of the Referendum 71 petition filed on Saturday. The order will remain in effect, granting temporary relief to more than 138,500 petition signers, pending a hearing scheduled for September 3, 2009 on the Plaintiffs’ request for a more permanent ruling.

James Bopp, Jr., lead counsel for the Plaintiffs stated, “This is a sign that the Judge is taking this matter very seriously. Individuals must be allowed to debate the merits of Referendum 71 without having to worry about whether they will be harassed for offering an opinion.”

Larry Stickney, Campaign Manager for Protect Marriage Washington added, “Obviously we are pleased with the Court’s ruling today and are hopeful that the Court will enter a more permanent injunction.”

Protect Marriage Washington and two petitioner signers filed suit on Tuesday against the Washington Secretary of State to prevent the public release of the Referendum 71 petition. Two groups had threatened to publish the names and addresses of the petition signers in an attempt to intimidate individuals who signed the petition.

Meanwhile, the Secretary of State continues the signature verification process. If Protect Marriage Washington submitted a sufficient number of valid signatures, the law commonly referred to as the “everything but marriage” domestic partnership law would not become effective unless a majority of Washington citizens voted to “affirm” the legislation.

Bopp added, “This ruling should provide some comfort to those who have signed the petition and were worried about being harassed. We will continue fighting for the right of all citizens to speak freely, and hope that the Court will provide further, permanent relief to those who signed the petition.”

PRESS RELEASE
Wednesday, July 29, 2009
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

Former FEC Chairmen and Commissioners Call for Reversal of
Two Supreme Court Cases Restricting Citizen Speech

Late yesterday, eight former commissioners (seven served as chairmen) of the Federal Election Commission filed a friend-of-the-court brief in Citizens United v. FEC calling for the overruling of two Supreme Court decisions that have chilled public speech by imposing complex and burdensome layers of regulations.

As the former commissioners’ brief noted: “[T]he field is so complex that citizens cannot understand it and experts find it difficult. The pristine simplicity of the First Amendment’s proscription of any law . . . is replaced by a flood of complex regulations. The complexity requires citizens to hire specialists to speak. Specialists cost money. Errors risk penalties. Core political activity is chilled.”

The case involves a challenge to a federal law prohibiting the broadcast of a documentary, Hillary: The Movie. In an unusual move, the U.S. Supreme Court ordered supplemental briefing on whether two of its decisions should be overruled. One is McConnell v. FEC, which facially upheld the prohibition in McCain-Feingold (the Bipartisan Campaign Reform Act) on corporate “electioneering communications” (broadcast ads mentioning federal candidates near elections). The other is Austin v. Michigan State Chamber of Commerce, which held that corporations could be prohibited from political activity.

The former commissioners speak from long years of experience in interpreting federal election laws, implementing regulations, devising enforcement policy, and investigating violations. They submitted the brief to advise the Court of the complexities and difficulties in the practical application of federal campaign-finance laws and the First Amendment to political speech and activity. And they highlighted how complex and confusing the federal regulatory scheme has become for citizens, and even specialists, and what a burden that fact imposes on participation in American political debate and elections, which are at the heart of the Republic.

Former Commissioner Hans A. von Spakovsky comments: “It is high time for the Supreme Court to overturn two bad decisions that fundamentally violate our First Amendment rights -- pornographers have greater freedom than those engaging in political speech. Giving government bureaucrats at the FEC the power to decide what can be said in political campaigns is one of the most constitutionally questionable enactments since Congress passed the Alien and Sedition Acts in 1798.”

Although the First Amendment mandates that “Congress shall make no law . . . abridging the freedom of speech,” the Austin case (based on a level-the-playing-field principle expressly rejected in two other decisions) spawned complex multi-factor tests for restricting different types of entities and speech. The brief noted that there are now unique and complex rules imposed by the Federal Election Campaign Act (“FECA”) on 71 distinct entities, much of it justified by Austin. FECA also uniquely regulates 33 different forms of speech. Furthermore, while corporations are prohibited from political activity, there are exemptions for media corporations, MCFL-corporations, and membership organization, each with complex sets of rules.

However, whenever a corporation is allowed to speak it must take special care not to fall into “political committee” (“PAC”) status, which imposes additional layers of complex rules and carries with it onerous burdens of compliance. In fact, PAC status is so difficult and onerous that, while there are 5.8 million active corporations, there are fewer than 2000 corporate PACs. And the burdens of PAC status fall disproportionately on small corporations because large corporations can more readily bear the cost and burden. So the ban on corporate political activity has had the perverse result of silencing small corporations, not the behemoths usually cited as the source of concern. And some groups, such as the ACLU, cannot even have a PAC, so they are silenced altogether.

Former Commissioner and Chairman David Mason states the problem as follows: “For ten years I wrestled with a law that became ever more complex, more laden with exceptions, more difficult to apply, and less fair. Rather than crafting yet another exception, the Court should simply recognize the equal First Amendment rights of all speakers.”

The brief notes that the FECA is 244 pages, and the FEC regulations interpreting FECA add an additional 568 pages. There have been 17 “major” and 366 other cases challenging FECA and FEC regulations, with 17 yet unresolved. The FEC has filled 1,278 pages of the Federal Register with explanations and justifications for its regulations, along with 10 policy statements, 1 interpretive rule, and 1,771 advisory opinions since 1975, with 9 more pending. The FEC has published 17 reporting forms, each with instructions, 6 campaign guides, 24 brochures, and 163 monthly issues of The Record, beginning in 1996. The FEC has numerous audit reports for review, and over 6,000 Matters Under Review, which involve resolved FEC complaints.

Former Commissioner and Chairman Bradley Smith says: “We think it is important that the Court grasp the complexity of the law and the enormous practical burden it places on those who would speak about politics. As a result, many don’t speak at all, and our society is poorer for it. We hope that as former commissioners, we can assist the Court to understand the scope of the law and the difficulty, if not impossibility, of administering it in a manner consistent with a robust First Amendment.”

The former commissioners explained that decisions built on Austin, namely, McConnell v. FEC, and FEC v. Wisconsin Right to Life, had proven unworkable. As to the “appeal to vote” test in Wisconsin Right to Life, intended to narrow the scope of regulable “electioneering communications,” the former commissioners noted that current commissioners disagree over its application, that the FEC has been unable to quickly determine whether the test applies or not, and that the FEC and a federal court have even disagreed over whether an ad is prohibited. The former commissioners concluded that, given the complexity and unworkability of the current regime, that political speech was being chilled and the decisions causing these problems must be overruled.

James Bopp, Jr., counsel of record for the commissioners, added: “The First Amendment mandated that ‘Congress . . . make no law . . . abridging freedom of speech.’ There was profound wisdom in that pristine statement that America must return to. While a few exceptions to ‘no law’ were made initially for exigent circumstances, the flood of regulation which these exceptions have spawned has made current federal campaign finance law the antithesis of ‘Congress shall make no law.’ Austin and McConnell must yield to the need of the American people for wide-open, robust debate about our government.”

The amici curiae (with FEC years and current affiliation indicated) are Joan Aikens (1975-1998, retired); Lee Ann Elliott (1982-2000, retired); Thomas Josefiak (1985-1991, Partner, HoltzmanVogel); David Mason (1998-2008, Visiting Senior Fellow, Heritage Foundation); Bradley Smith (2000-2005, Blackmore/Nault Designated Professor of Law, Capital University); Michael Toner (2002-2007, head of Election Law and Government Ethics Practice Group, Bryan Cave); Hans von Spakovsky (2006-2007, Visiting Legal Scholar, Heritage Foundation); and Darryl Wold (1998-2002, private law practice emphasizing election and political law). All chaired the FEC during their tenure except for Commissioner von Spakovsky.

The brief is available at www.jamesmadisoncenter.org. the James Madison Center’s website .

James Bopp, Jr. has a national campaign finance and election law practice with Bopp, Coleson & Bostrom. He is General Counsel for the James Madison Center for Free Speech.

PRESS RELEASE
Wednesday, July 29, 2009
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

Protect Marriage Washington Files Suit to Prevent 138,500 Names from
Being Posted Online By Foes of Traditional Marriage

On July 28, 2009, Protect Marriage Washington and two petitioner signers filed suit against the Washington Secretary of State to prevent the Secretary of State from releasing the names and addresses of over 138,500 Washington citizens who stood up in defense of marriage by signing a referendum to put the domestic partnership law on the ballot.

On Saturday, July 25, Protect Marriage Washington submitted a petition containing the signatures in an effort to place a referendum question on the November 2009 ballot regarding what is commonly referred to as the “everything but marriage” domestic partnership law. If the Secretary of State certifies the petition, the law would not become effective unless a majority of Washington citizens voted to “affirm” the act of the state legislature.

Opponents have now threatened to obtain copies of the petition, which contain the name and address of each petition signer, in an effort to make them available on the internet. The clear goal of this effort is to intimidate and harass supporters of a traditional definition of marriage, an increasingly common tactic among opponents of traditional marriage. Protect Marriage Washington has asked the Court to immediately stop the Secretary of State from releasing the names until the Court can hold a hearing on whether the names should ever be released.

“The State cannot allow the release of the names on the Referendum 71 petition when the purpose is to harass and intimidate people who are merely exercising their right to speak,” said James Bopp, Jr., lead counsel in the case.

Larry Stickney, Campaign Manager for Protect Marriage Washington said that “No petition signer should have to endure the threats and harassment I endured while circulating the petition.”

Bopp added. “It is clear that the individuals who signed the petition will be harassed if the Secretary of State releases the names. The Court can prevent this harassment by preventing the Secretary of State from releasing the names.”

The case is before the Honorable Judge Benjamin H. Settle, in the United States District Court for the Western District of Washington, in Tacoma. The case number is 3:09-cv-0546-BHS. Attorney Stephen Pidgeon (Bellevue, WA), an Alliance Defense Fund Allied Attorney, is serving as local counsel in the case.

PRESS RELEASE
Thursday, July 2, 2009
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

Alaska Voters and Candidate Challenge Process for Selecting State Judges

Two Alaska voters and one past judicial candidate filed suit today in federal court to stop the current plan for selecting state judges in Alaska. The current plan denies ordinary Alaska voters an equal voice in selecting their judges.

In Alaska, a seven member group called the Judicial Council limits nominees forwarded to the Governor for open seats on Alaska’s courts. Governor Palin is then forced to choose one of them, regardless of differences of views on legal matters. Since all nominees allowed to move forward by the Judicial Council may be diametrically opposed to the Governor, the Judicial Council, and not the people, has complete control over who becomes a judge in Alaska. The Judicial Council makeup, with three lawyers selected only from and by the Bar Association, guarantees lawyers have a greater say than ordinary citizens in Alaska in selecting judges who have great power and control over the lives of regular citizens. The suit asks the court to put an end to this inequality and give all Alaska voters an equal voice.

The case arises out of the upcoming retirement of Justice Robert L. Eastaugh from the Alaska Supreme Court. His retirement will create a vacancy on November 2, 2009. The plaintiffs want the court to stop the three lawyer Council members from selecting the nominees for that vacancy. If successful, when Governor Palin has to make her choice to fill the spot, the names in front of her will be picked by a Council that represents equally all the people of Alaska.

Incidentally, the Alaska Bar Rag, published by the Alaska Bar Association, has recently featured editorials expressing concern over the flaws in the judicial selection process.

According to attorney James Bopp, Jr., lead counsel for the plaintiffs, the Alaska plan “gives the Alaska Bar Association a stranglehold on the judiciary. Lawyers in Alaska have enormous influence over who the state judges are, while the ordinary voter is denied the right to an equal voice.” The system needs to be corrected now, before Governor Palin is forced to put another justice on the Supreme Court through an unjust process.

The case is Hinger v. Carpeneti, et al., No. (D. Alaska July 2, 2008). The complaint and memorandum supporting the motion for a preliminary injunction are available in PDF format online at the James Madison Center’s website, www.jamesmadisoncenter.org, under the “Alaska Judicial Selection Challenge” link on Thursday, July 2, 2009.

PRESS RELEASE
June 3, 2009
Contact: James Bopp, Jr.
Phone: 812/232-2434; Fax: 812/235-3685; jboppjr@aol.com

ProtectMarriage.com and National Organization for Marriage
Ask Court to Rule in Their Favor on Proposition 8 Case

Today, ProtectMarriage.com and National Organization for Marriage asked the Court to make a decision on their case involving the free speech rights of citizens who supported Proposition 8 in California. Proposition 8 added an amendment to the California Constitution defining marriage as between one man and one woman.

ProtectMarriage.com and National Organization for Marriage are asking the Court to grant their motion for summary judgment, which asks the Court to find in their favor on all of the claims in their lawsuit. If successful, California will have to remove the names of donors who gave as little as $100 to the recent campaign for Proposition 8 from the state website, among other things.

Since filing for a preliminary injunction, ProtectMarriage.com and National Organization for Marriage have submitted nearly fifty new statements to the Court, from people who have experienced harassment because of their support for Proposition 8. “The Court wanted to see more evidence of harassment, threats, and reprisals that occurred to people who supported Proposition 8, so we have given that to the Court,” said James Bopp, Jr., lead counsel in the case.

“The First Amendment guarantees citizens the right to have their political voices heard, but the threats, harassment, and reprisals that people who supported Proposition 8 have suffered because of their support destroys that right,” Bopp added. “This summary judgment filing makes it clear that the harassment of people who supported Proposition 8 is ongoing, and the Court has the ability to stop such harassment from happening.”

If you have been the victim of threats, harassment, or reprisals of any kind, please contact Sarah Troupis at stroupis@bopplaw.com to find out more information on the case, and how you can help ensure the protection of you First Amendment rights.

The case is before the Honorable Judge Morrison C. England, in the United States District Court for the Eastern District of California, in Sacramento. The case number is 2:09-CV-00058-MCE-DAD.

PRESS RELEASE
Monday, April 6, 2009
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685
jboppjr@aol.com

James Madison Center for Free Speech
Challenges IRS Regulation of Non-Profit Political Speech

The James Madison Center filed two federal lawsuits on Friday, April 3, 2009, to challenge the IRS definition of "political intervention," which has been used by the IRS to stifle the legitimate speech activities of many non-profit organizations.

For decades the IRS has applied an "all the facts and circumstances" test to the grass roots lobbying, issue advocacy and voter education activity of non-profits to determine if the non-profit has actually engaged in prohibited political activity. Furthermore, this vague IRS test has been exploited by some liberal groups to threaten and harass churches and other non-profits, causing many of them to be fearful of IRS retribution if they discussed moral or public policy issues. Non-profits have even shied away from legitimate grass roots lobbying activity in fear that it will be considered political intervention. As a result, the legitimate speech activities of many non-profits have been chilled and their free speech rights infringed.

In Catholic Answers and Karl Keating vs. USA, the IRS determined that two "E-letters" posted in 2004 by the President of Catholic Answers, Karl Keating, on his blog on the Catholic Answers website arguing that John Kerry should not receive Holy Communion, because of his pro-abortion position, were "political expenditures" that might influence the 2004 presidential election. The IRS assessed a tax on Catholic Answers, a 501(c)(3) charity, for these blog entries and required that Keating reimburse Catholic Answers $900 for the expenditures incurred for these E-letters. Catholic Answers is demanding that the courts find that a discussion by a Catholic group about who should receive Holy Communion is not properly considered "political intervention," allowing them to reimburse Keating his $900.

In Christian Coalition of Florida vs. USA, the Christian Coalition of Florida (CC-FL) was denied its 501(c)(4) status by the IRS because the IRS claimed that its newsletters, voter guides, and legislative scorecards constituted political intervention and that these activities meant that CC-FL’s "primary activity" was political intervention. CC-FL claims, however, that their newsletters, voter guides and legislative scorecards are educational in that they provide members with information about candidates and legislators on a variety of issues and do not expressly advocate the election or defeat of any candidate. Furthermore, CC-FL argues that these activities, even if considered political intervention, were not extensive enough to be the "primary activity" of CC-FL.

In both cases, the Madison Center is also claiming that the IRS rules and regulations are vague and overbroad and, as a result, chill the First Amendment free speech rights of non-profits. The suits ask that the IRS’s rules and regulations on "political intervention," and its "facts and circumstances" test, be struck down or narrowly construed to only encompass speech which expressly advocates the election or defeat of a clearly identified candidate.

James Bopp, Jr., General Counsel for the Madison Center and counsel for Catholic Answers and CC-FL, said that "The IRS’s ex post facto determination of what constitutes political intervention, based on ‘all the facts and circumstances,’ creates a regulatory minefield for non-profits, which is virtually impossible for them to navigate without completely foregoing any activity that mentions public officials and candidates during election years. This self-censorship of protected speech violates the non-profit's First Amendment rights."

Catholic Answers and Karl Keating vs. USA was filed in the U.S. District Court for the Southern District of California, San Diego Division, Cause No. 09-CV-0670-IEG-AJB and Christian Coalition of Florida vs. United States of America was filed in the U.S. District Court of the Middle District of Florida, Ocala Division, Cause No. 5:09-CV-144-OC-10GRJ. The complaints are posted at www.jamesmadisoncenter.org.

James Bopp. Jr., has a national federal and state campaign finance and non-profit tax law practice with Bopp, Coleson & Bostrom in Terre Haute, IN. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.

PRESS RELEASE
March 17, 2009
Contact: James Bopp, Jr.
Phone: 812-232-2434; Fax 812-235-3685
jboppjr@aol.com

Whitewater Wisconsin Restrictions on
Referendum Communications Declared Unconstitutional

At this time last year, John Swaffer, Jr. and Michael Rasmussen wanted to send out post cards and distribute yard signs urging residents of Whitewater, Wisconsin, to vote against a local referendum that would have overturned the town’s ordinance against liquor sales. But under Wisconsin law, the cards and signs would have to include a disclaimer, and because they would have cost more than $25, Mr. Swaffer and Mr. Rasmussen would have to register with the State as political committees, maintain a separate bank account, keep detailed financial records for three years and file reports with the state. Attorneys at Bopp, Coleson & Bostrom filed suit in federal court, and won a preliminary injunction allowing the two to send the postcards and distribute the yard signs without the disclaimer or forming a political committee. The court has now issued its judgment in the case, and declared the Wisconsin laws unconstitutional.

The court ruled that the registration, recordkeeping and reporting requirements "act to inhibit the open exchange of ideas and political conversations on referendum issues," where "‘the direct participation of the people’" is most important. Furthermore, the court found the disclaimer requirement to be a broad prohibition of anonymous political speech that "run[s] afoul of the First Amendment" under the Supreme Court’s 1995 decision in McIntyre v. Ohio Elections Commission.

"The court recognized the Wisconsin laws as classic examples of overreaching campaign finance laws," says James Bopp, Jr., lead counsel for the plaintiffs. "Government is not free to regulate every citizen who wants to send post cards or put up yard signs concerning a referendum—such activities are at the core of the First Amendment."

The case is titled Swaffer v. Deininger et.al., 08-C0208, and a copy of the court’s order is available at the James Madison Center’s website www.jamesmadisoncenter.org.

James Bopp, Jr. has a national campaign finance and election law practice with Bopp, Coleson & Bostrom. He is General Counsel for the James Madison Center for Free Speech.

PRESS RELEASE
Wednesday, February 18, 2009
Contact: James Bopp, Jr.
Phone 812/243-0825; Fax 812/235-3685; jboppjr@aol.com

Judge Wins Right to Join Democratic Party

Federal District Court Judge Barbara Crabb has granted a permanent injunction against provisions of the Wisconsin Code of Judicial Conduct that prohibited state court judicial candidates from belonging to a political party, as well as from personally soliciting campaign contributions and publicly endorsing political candidates.

The Plaintiff in the case, Milwaukee County Circuit Judge John Siefert, had sought the right to join the Democratic party, endorse then Presidential candidate Barack Obama, and personally solicit campaign contributions. Each of these activities, however, was prohibited by the Wisconsin Code of Judicial Conduct. In March of 2008, Siefert brought suit in federal court, arguing that the restrictions violated his First Amendment rights. The District Court agreed, finding that allowing voters to have "more rather than less information advances democratic values."

James Bopp, Jr., lead counsel for the plaintiffs, praised Judge Crabb’s decision. "The U.S. Supreme Court that said judicial candidates have full First Amendment protection for their political speech. Stating a party preference is just a shorthand for announcing your political views, and Judge Crabb rightly found that this was protected political speech."

The case is Siefert v. Alexander, et al., 3:08-cv-126. Copies of the pleadings and the Court’s order are available in PDF format online at the James Madison Center’s website, www.jamesmadisoncenter.org, under the "Judicial Accountability Project" link.
Bopp, an expert in campaign regulations, successfully argued a case in 2007 challenging separate provisions of Wisconsin’s Code of Judicial Conduct, as well as the 2002 U.S. Supreme Court case Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which forms the basis for this action.

James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and Co-Chairman of the Election Law Subcommittee of the Federalist Society.