Supreme Court Asked to Protect Campaign Speech in Final Days Before Election

James Madison Center for Free Speech
1 South 6th Street
Terre Haute, IN 47807-3510
www.jamesmadisoncenter.org

PRESS RELEASE
Friday, October 8, 2010
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685

Supreme Court Asked to Protect Campaign Speech in Final Days Before Election

Today, attorneys with the James Madison Center for Free Speech filed two emergency requests with the Supreme Court seeking to protect the rights of their clients to participate in the critical month before the 2010 election.

The days and weeks before the election are the time when voters are paying the most attention, and anyone who wants to speak needs to be able to do so quickly or it will be too late. The problem is that government has erected a blockade of regulations, so that individuals often need to file a lawsuit before they can exercise their right to participate in the political debate. And often judges are reluctant to overturn even clearly unconstitutional laws shortly before an election.

The two cases involved in today’s filing illustrate this problem. In Washington, Family PAC, an organization that supports traditional family values, filed a lawsuit before the 2009 election because it wanted to produce radio advertisements and conduct get-out-the-vote activities about a same-sex marriage referendum. A prior Supreme Court decision held that all ballot measure contribution limits are unconstitutional.

Family PAC asked the court to rule that Washington’s $5,000 contribution limit, which applies only during the three weeks before an election, is unconstitutional because it prohibited Family PAC from raising the funds necessary to conduct its planned activities. However, the court refused to overturn the law because it did not want to upset the law so close to the election, even though Family PAC could have conducted its planned activities in those critical days before the election. As a result, Family PAC lost its opportunity to speak in the 2009 election.

Now, long after the 2009 election, the court ruled in Family PAC’s favor, ruling that the $5,000 contribution limit is unconstitutional. But now the court of appeals has stepped in and reinstated the $5,000 contribution limit because Family PAC has not yet made concrete plans about how it wants speak about an income tax measure on the 2010 ballot. Unless the Supreme Court intervenes, Family PAC will once again be prevented from raising the funds necessary to conduct any activities it may wish to make.

In Maine, a public funding law gives taxpayer funding, or matching funds, for the campaigns of candidates based on speech by their opponents and even ordinary citizens. In August a coalition of candidates, political groups and voters brought suit claiming that the law effectively required them to fund the campaigns of candidates they opposed.

An identical public funding system in Arizona was halted by the Supreme Court in June.

Nevertheless, both the federal trial court and court of appeals have refused to stop Maine’s use of matching funds, saying that the suit was brought too close to the election.

“I feel like my client is Goldilocks,” said James Bopp, Jr., general counsel for the Madison Center, “its always too early or too late to protect my client’s right to speak. But when the First Amendment is involved, the time is always just right for the court to step in to protect them. The courts must do more to protect First Amendment rights from government encroachment.”

The cases are Family PAC v. McKenna and Cushing v. McKee. Copies of the applications and other documents relating to the cases are available in PDF online at the James Madison Center’s website, 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.