PRESS RELEASE
August 15, 2008
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com
The appeal concerns Citizens United’s desire to broadcast television advertisements for its documentary titled Hillary: The Movie (hillarythemovie.com). Because the ads qualify as “electioneering communications” under McCain-Feingold, the FEC requires that Citizens United report its donors and put political disclaimers on the ads.
Citizens United objects to these regulations because the district court and Federal Election Commission agree that the advertisements are “genuine issue ads” that are fully protected from regulation by the First Amendment under the rationale of the Supreme Court’s recent decision in FEC v. Wisconsin Right to Life (2007) (“WRTL II”). Because the ads do not contain an "appeal to vote," they cannot be prohibited. As a result, Citizens is arguing that they also cannot be regulated in any way, including by requiring the disclosure of its donors.
Citizens United also appeals the decision of the district court that broadcasting the movie is prohibited by McCain-Feingold.
James Bopp, Jr., counsel for Citizens United states: “We believe the questions that this case raises are substantial, so that the Supreme Court should accept our appeal. These advertisements are protected by the First Amendment as issue ads and are beyond the legitimate reach of campaign finance laws. And the notion that a feature-length movie can be banned is a return to the days of government censorship and book-burnings. This movie has been shown in theaters and is sold on DVD by major national retailers, and it is accompanied by a published compendium book for which royalties were paid to Citizens United. It is not at all the same as the ‘ads’ that the Supreme Court considered in McConnell v. FEC when it facially upheld the prohibition on electioneering communications.”
Bopp has argued multiple cases before the Supreme Court, including WRTL II, in which the Court limited McCain-Feingold’s prohibition on electioneering communications in order to protect WRTL’s grassroots lobbying ads.
A copy of the Second Jurisdictional Statement filed with the Court, along with other case documents, can be found on the website for the James Madison Center for Free Speech at www.jamesmadisoncenter.org.
PRESS RELEASE
July 30, 2008
Contact: James Bopp, Jr.
Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com
Please try the cell phone first.
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.
PRESS RELEASE
Friday, July 25, 2008
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com
In the case, Duke v. Leake, judicial candidate Judge Duke and North Carolina Right to Life Committee for Independent Expenditures Committees wanted to make expenditures during the 2006 election cycle without triggering additional government funds to that candidate's publicly funded opponent. Duke made expenditures in excess of the triggering amount and IEPAC was deterred from making any.
In addition, North Carolina's rescue funds provisions requires additional burdensome reports to be file by privately funded candidates and by independent spenders which are not required for publicly funded candidates.
The Fourth Circuit ruled that the rescue funds and disproportionate reporting requirements did not unconstitutionally burden privately funded candidates like Judge Duke or independent spenders, dismissing the rationale of an Eighth Circuit case, Day v. Holahan, which found such burdens on speech unconstitutional. In the recent case of Davis v. FEC, however, the U.S. Supreme Court cited Day for the proposition that a government benefit to one candidate is an unconstitutional burden on their opponent.
James Bopp, Jr., lead counsel for Plaintiffs, “by endorsing rationale of the Eighth Circuit’s decision in Day, it is now obvious that treating candidates differently, by affording rescue funds to penalize the “excess” spending of a privately funded opponent or independent sending against the publicly funded candidate, imposes an unconstitutional burden. Furthermore, the Supreme Court struck down disproportionate reporting requirements in Davis. North Carolina’s similar requirements, therefore, cannot survive.“
Bopp also notes, “Given the popularity of public financing schemes and their accompanying rescue funds provisions, the Supreme Court should take this case to ensure that privately funded candidates and independent spenders are not penalized and victimized by these rescue fund provisions.”
Copies of the brief are available in PDF format online at the James Madison Center’s website, www.jamesmadisoncenter.org, under the “Duke v. Leake” link
James Bopp, Jr. has a national federal and state election law practice with the law firm of Bopp, Coleson & Bostrom. 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
June 26, 2008
Contact: James Bopp, Jr.
Phone: 812-232-2434; Fax 812-235-3685
jboppjr@aol.com
Today, the United States Supreme Court struck down McCain-Feingold's so-called Millionaire's Amendment. In so doing it resolved two key issues concerning the constitutional analysis to be applied in cases that involve campaign-finance disclosure and public funding of elections. The James Madison Center for Free Speech and Citizens United filed an amici curiae brief opposing the Millionaire's Amendment, in Davis v. Federal Election Commission, arguing that it imposed unconstitutional burdens on the right of candidates to self-fund their campaigns.
Jack Davis, a Democrat candidate for the U.S. House, became subject to the Amendment by spending his own money to help fund his campaign. The Amendment requires House candidates intending to contribute (or loan) more than $350,000 to their campaign to notify the FEC and opponents of that intent and then file frequent reports on their self-funding. When the $350,000 threshold is reached, the Amendment also raises the contribution limits of that candidate's opponent, allowing the opponent to raise significantly more money from people who have reached their $2,300 contribution limit. The FEC and so-called campaign finance reformers attempted to justify the Amendment as an attempt to level the playing field for candidates. But it actually favors incumbents because it only addresses the advantage that personal wealth can give to a campaign, not the advantages that incumbents have (e.g., name recognition, public office, and prior campaign experience that make fundraising and campaigning easier).
A three-judge federal district court in DC ruled against Davis, holding that the Amendment did not burden his free speech rights but merely benefitted those choosing not to give (or loan) so much money to their campaigns. The court analogized the Amendment to public-funding schemes, which also impose additional disclosure requirements and raise limits when non-participating candidates spend beyond certain expenditure limits.
The James Madison Center for Free Speech and Citizens United filed an amici curiae brief in support of Davis. The brief made two central arguments. First, it argued that the disclosure requirements were unconstitutional for requiring that a candidate's contributions to his campaign be disclosed as they were being made, in addition to being reported on the normal periodic disclosure schedule. Second, it argued that a law benefitting one candidate necessarily harmed the other candidate because a campaign is a zero-sum contest.
The Supreme Court declared the disclosure requirements unconstitutional. It recognized that compelled disclosure is inherently a burden on First Amendment privacy rights that must be "closely scrutinized." The Amendment required a candidate to report contemporaneously information he was already required to disclose on periodic reports, but that was a burden triggering "close scrutiny." As to the required scrutiny, it involved two elements identified in Buckley v. Valeo (1976), i.e., "exacting scrutiny" (which has in other contexts been identified as "strict scrutiny") and a "relevant" and "substantial" "correlation" or "relation" between the government's interest and the information that would be disclosed (which Buckley interpreted to require that any expenditure be "unambiguously related to the campaign of a specific candidate"). That the level of scrutiny the Court imposed was very high is evidenced by the fact that it held the disclosure requirements here to be unconstitutional, even though they only required earlier reporting of contributions that would have to be reported anyway and even though they imposed disclosure in the highly-regulated field of candidate campaign financing disclosure.
As to whether a benefit to one candidate burdens the opposing candidate, the Court said that it did. And it cited an Eighth Circuit decision, Day v. Holahan, which applied the same principle in the public funding context. This settles a long simmering debate among the lower federal courts about whether a benefit to an opposing candidate harms the non-benefitted candidate. Davis clearly establishes that there is such a harm and held that this harm was not constitutionally justified.
According to James Bopp, Jr., counsel for the James Madison Center for Free Speech and Citizens United: "This decision has broad implications for other cases. The Court has clarified that compelled disclosure is inherently a First Amendment burden that must be justified under a very high standard of review. And candidates have a First Amendment right to fund their own speech without being burdened by government provision of benefits to their opponents. This has broad implications for public-funding schemes."
The amici curiae brief can be found at www.jamesmadisoncenter.org.
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.
Monday June 23, 2008
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com
James Madison Center for Free Speech Files
Amicus Curiae Brief Supporting Historical Park
Today, the James Madison Center for Free Speech filed a U.S. Supreme Court amicus curiae brief in support of the city of Pleasant Grove, Utah. The city was sued in 2005 for refusing to include a monument of the "Seven Aphorisms," or principles, of the Summum religion as part of a historical park. The Aphorisms include beliefs that "the universe is a mental creation" and that "all truths are but partial truths."
The displays in Pioneer Park represent the history of Pleasant Grove and commemorate events significant to that history. Of the many things included in the park are a pioneer water well (donated by the Lions Club), a flour mill stone (donated by a resident), a ten commandments monument (donated by the Fraternal Order of Eagles), and a granary (donated by a local family). The displays are approved by the city and can be removed by the city at any time. Upon the city's refusal to accept its donated monument, the Summum religious group sought an injunction in federal court.
The federal district court denied Summum's injunction request, but the Tenth Circuit Court of Appeals reversed, holding that the First Amendment required the city to allow Summum's monument to be placed in the park, as well. Because the city had created a forum by allowing private displays to be placed in the park, the Court reasoned, any monument should be allowed to be placed in the park, subject only to time, place, and manner restrictions. An evenly divided Tenth Circuit declined to rehear the case en banc. But the United States Supreme Court agreed to hear it in March 2008.
According to James Bopp, Jr., counsel for the James Madison Center, "this is a clear example of government speech. The city has a specific, historical message it is conveying in Pioneer Park and has final review and continued control over everything that is part of that message. Yet the Tenth Circuit assumed that because individuals were supporting the city’s historical message, the speech involved amounted to private speech." Bopp continues, "such a conclusion is wrong and leads to untenable results. Every time someone helps the government convey its message, others would then be entitled to undermine that message from the very outset. The government would have to either refuse individual participation in its message or would be required to allow opposing views to be part of that message. Government support of cancer awareness postage stamps and specialty ‘pro-life’ license plates would always necessitate access for a contrary, private message. Such is not the case."
The amicus brief can be found at www.jamesmadisoncenter.org.
James Bopp, Jr. has a national federal and state election law practice with the Terre Haute, Indiana law firm of Bopp, Coleson & Bostrom. 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, May 30, 2008
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685
jboppjr@aol.com
Indiana Democratic and Republican Parties File Joint Friend-of-the-Court Brief in
Indiana Supreme Court to Protect Political Computer-Generated Phone Calls
Today, the Indiana Democratic Party and the Indiana Republican Party filed a joint friend-of-the-court brief in a case involving computer-generated political calls. The case, State of Indiana v. American Family Voices, Inc., was initiated by the State of Indiana against American Family Voices and others for using automatic dialing machines to make political calls during the 2006 election cycle. The case was dismissed by the trial court, based on the Defendant’s argument that the statute only prohibited commercial calls. The Attorney General appealed and the case was taken up directly by the Indiana Supreme Court, bypassing the Court of Appeals.
Both political parties would use robocall technology to make political calls, if it were legal. In their brief, the political parties argue that the Indiana Supreme Court should construe the statute to only apply to commercial calls. To apply it to political calls violates both the Indiana Constitution and the First Amendment of the U.S. Constitution.
James Bopp, Jr., counsel for both the Indiana Democratic and Republican Parties in this matter, states that "this type of political call serves a valuable public function that is in the public's interest. Such calls are used to remind Hoosiers to register to vote and to vote on election day." He continues, "if this law is interpreted to include political calls, a disservice will be done to Indiana residents, and political candidates and parties will be unconstitutionally deprived of their free speech rights."
Bopp successfully argued the most recent campaign finance case before the Indiana Supreme Court, Brownsburg Area Patrons Affecting Change v. Baldwin, decided in 1999, and has won four of the five campaign finance cases he has orally argued in the United States Supreme Court.
Oral argument in the case is scheduled for June 16, 2008.
James Bopp, Jr. has a national federal and state election law practice. He is with the law firm of Bopp, Coleson & Bostrom in Terre Haute, IN, 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
Wednesday May 21, 2008
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com
Judicial Candidate Seeks Right to Campaign
Judicial candidate Randolph Wolfson filed suit today in federal court in Phoenix to block enforcement of Arizona judicial canons that restrict the ability of state court judicial candidates to engage in ordinary political activities as part of their campaigns. Mr. Wolfson is a resident of Golden Valley, Arizona, and is a candidate for Superior Court Judge in Mohave County in the 2008 election.
Elections for state court judges in Arizona are partisan. Yet under Arizona law, judicial candidates are significantly limited in their ability to engage in many political activities typical of election campaigns. The Arizona Code of Judicial Conduct limits a judicial candidate’s ability to speak on disputed legal or political issues, prohibits candidates from supporting other candidates or ballot initiatives, and bans candidates from personally soliciting campaign contributions.
Mr. Wolfson previously sought to challenge these provisions during the 2006 election. This case was dismissed, however, on the grounds that Mr. Wolfson had not first sought an advisory opinion from the state’s Judicial Ethics Advisory Commission as to whether he was prohibited from announcing his views, making endorsements, or personally soliciting money for his campaign. This time, Mr. Wolfson has received such an opinion, Advisory Opinion 08-01, which confirms the limits placed on his speech by the Arizona Code.
According to attorney James Bopp, Jr., lead counsel for the plaintiffs, “these canons are in direct violation of the First Amendment. Judicial candidates’ free speech rights are being unconstitutionally restricted and voters are being deprived of their right to cast an informed vote.” He continues, “if a state chooses to elect its judges, it has to allow judicial candidates to engage in the sorts of political activities that are a normal part of any political campaign.” Mr. Bopp successfully argued the U.S. Supreme Court’s decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which held unconstitutional a Minnesota rule that prohibited judicial candidates from “announc[ing] their views on disputed legal or political issues.”
Mr. Wolfson has asked for a preliminary injunction so that he and other Arizona judicial candidates may campaign freely prior to the November, 2008 election.
The case is Wolfson v. Brammer, et al., case number 08-CV-958. The action was brought by attorneys from the James Madison Center for Free Speech, with the assistance of attorneys from the Alliance Defense Fund. The Complaint and Memorandum supporting the motion for preliminary injunction are available in PDF format online at the James Madison Center’s website, www.jamesmadisoncenter.org, under the “Judicial Accountability Project” link.
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.
PRESS RELEASE
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685
jboppjr@aol.com
Federal Court Allows Judicial Candidates To State Their Views On Questionnaires
Today, an Indiana federal court granted an injunction against rules preventing judicial candidates from answering a candidate questionnaire. The parties to the suit include Torrey Bauer and Judge David Certo, judicial candidates in the upcoming election, and Indiana Right to Life, who sent judicial candidates questionnaires asking them to voice their opinion on various issues.
Judge Springmann held that Plaintiffs are likely to succeed in their challenge to the constitutionality of Indiana’s judicial canons that forbid judicial candidates from making “pledges or promises” of conduct in office or statements that “commit or appear to commit” candidates on issues likely to come before. Plaintiffs claim that these canons violate the First Amendment to the U.S. Constitution because they prohibited candidates from simply announcing their views on issues. The court's ruling prevents Indiana's Commission on Judicial Qualifications from enforcing these provisions against judicial candidates who answer the IRTL questionnaire.
Indiana Right to Life had sent a questionnaire to candidates for judicial office prior to the May 6, 2008, primary requesting that they state their views on policies and court decisions related to such matters as assisted-suicide and abortion. Judge Certo along with many other judicial candidates, refused to do so, concerned that he would be disciplined by the Commission in light of the judicial rules and the Commission's interpretation of their rules. Mr. Bauer had answered the questionnaire but recognizes that doing so exposes him to discipline. In 2002, the U.S. Supreme Court held unconstitutional a Minnesota rule that prohibited judicial candidates from “announcing their views on disputed legal or political issues.
According to James Bopp, Jr., lead counsel for the plaintiffs, the Indiana judicial canons “contradict the U.S. Supreme Court’s decision and subsequent federal court ruling that recognize that judicial candidates have a right to respond to questionnaires like this and that voters have a right to hear what they have to say.” Bopp, who successfully argued the case challenging the Minnesota judicial rule struck down by the U.S. Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), stated that Indiana’s canons and the Commission's interpretation of them “cover the same unconstitutional ground” as Minnesota’s rule that prohibited judicial candidates from announcing their views had done.
The case is Bauer v. Shepard, No. 3:08-cv-196 (N.D. Ind. Apr. 18, 2008). The decision is available in PDF format online at the James Madison Center’s website, www.jamesmadisoncenter.org, under the “Judicial Accountability Project” link.
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
Monday, May 5, 2008
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com
Indiana Supreme Court Advised To Make Judicial Rules Constitutional
PRESS RELEASE
Thursday, May 2, 2008
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com