4th Circuit: Petition for Full Court Rehearing Filed in Real Truth About Obama v. FECBopp, Coleson & Bostrom PRESS RELEASE 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.”
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