Electioneering blackout upheld

This is another in a continuing series of reports on the aftermath of Supreme Court decisions or orders. The Court in 2003 upheld against a facial attack the provisions of the 2002 federal election finance law that bar corporations and labor unions from using their own funds to pay for a broadcast, cable or satellite message that mentions a federal candidate 30 days before a primary election and 60 days before a general election (McConnell v. Federal Election Commision). However, on January 23, in Wisconsin Right to Life v. FEC (docket 04-1581), the Court ruled summarily that “as-applied” challenges could be made to enforcement of the electioneering blackout. The following is a District Court’s reaction to that ruling, in another case.

A three-judge U.S. District Court in Washington on Tuesday ruled that the FEC may forbid a Maine group that opposes same-sex marriage from running ads, planned to start on Wednesday, urging that state’s voters to write to their two U.S. Senators to urge them to support a federal constitutional amendment outlawing such marriages nationwide. One of the two Senators, Olympia Snowe, a Republican, is running in the primary election in Maine set for June 13 — thus, the planned ad campaign would be running during the 30-day blackout period that federal law imposes.

The Maine group is Christian Civic League of Maine, Inc. It has planned to spend about $4,000 on a radio advertisement naming Sen. Snowe and her GOP colleague, Sen. Susan Collins. The group said it expects the Senate to be debating and voting on the proposed constitutional amendment early in June, so it wanted the campaign to unfold at a time that could generate voter pressure on the Senators.

(The Wisconsin Right to Life case, which involved a 2004 ad campaign that named Sen. Russ Feingold, Democrat, has returned to U.S. District Court in Washington [docket 04-1260]. A hearing on it, before a different panel of three judges, is now scheduled for September 18. Thus, the Maine case moved on a faster track.)

At this stage, the case of Christian Civil League of Maine v. FEC (docket 06-614), only involved a request by the League for a preliminary injunction to bar the FEC from enforcing the electioneering blackout during the planned pre-primary period. The group had asked for a broader injunction, against any enforcement against any ad campaign involving “grass roots lobbying,” but the District Court confined its ruling to the specific ad that was to run beginning this week. (The Court noted that the League could go ahead with the ad campaign if it did not use its own treasury funds to pay for it, but the League has opted not to do so, in order to test the constitutionality of any enforcement against a “grass roots lobbying” broadcast.)

In its ruling, which can be found here, the District Court said that “enforcement of the electioneering communications provision to bar the League’s proposed advertisement appears problematic under the First Amendment.” It noted that the First Amendment protects corporate speech on matters of public concern, and that the planned ad “would address a legislative issue at a time when that issue is likely to be under consideration in the Senate. And the advertisement does not mention Sen. Snowe’s candidacy, which is unopposed.”

But, the Court went on, the blackout provision “appears narrowly tailored to serve a compelling governmental interest… Particularly after McConnell, there can be no question that the government interest in maintaining the integrity of the electoral process is compelling.” It again noted that the League could run the campaign with money other than from its own treasury. “Here, the Act does not bar the proposed advertisement; it only requires that the League fund it through a political action committee,” the Court declared. And it could even use its own money if it put the ad in something other than broadcast format, such as in a newspaper, a leaflet, an e-mail, or a telephone bank message. Further, it said, the ad could even be financed out of corporate funds, so long as it did not clearly identify Sen. Snowe.

The Court said that the planned ad “appears to be functionally equivalent to the sham issue advertisements identified in McConnell.” The ad, it noted, calls Snowe’s prior vote against the marriage amendment “unfortunate,” and thus “is the sort of veiled attack that the Supreme Court has warned may improperly influence an election.” The Court speculated that the ad might encourage a new candidate to run against Snowe, reducing her primary votes, weakening her for the general election, “or otherwise undermining her efforts to gather such support, including by raising funds for her reelection.”

A “grass roots lobbying” exception to the blackout provision, it said, “would seriously imapir the government’s compelling interest in protecting the integrity of the electoral process.”

It concluded that the League had not shown “a substantial likelihood” that its First Amendment challenge to enforcement would succeed when the case proceeds to the merits.