Posted October 2, 2006 by J. Gerald Hebert

Supreme Court Deals More Setbacks to Campaign Finance Reform Opponents

Today the Supreme Court dismissed as moot the appeal of Christian Civic League of Maine v. FEC.  The case is just one on a laundry list of attempts by the anti-reform community to carve out an exemption in the electioneering communications provisions of BCRA which could then be relentlessly expanded.  In this as-applied challenge to the electioneering communications of BCRA, CCLM wanted to run an ad just before the June 2006 Maine primary which mentioned the name of Maine Senator Olympia Snowe, who is a candidate in this year’s elections.  (Snowe was unopposed in the primary).  BCRA’s electioneering communications provisions require corporations and unions to run such ads using PAC funds if they are to be broadcast within 30 of a primary or 60 days of a general election.

The Supreme Court today also rejected an appeal from the Ninth Circuit decision in Alaska Right to Life v. Miles, upholding an Alaska state electioneering communication law even broader in its application than the federal law it was modeled on.  Attorney Jim Bopp represented both CCLM and Alaska Right to Life in these rejected Supreme Court appeals.

Campaign finance reform critic Bob Bauer has been critical of these provisions, and he and I have exchanged blog postings on the subject.  Click here, here, and here.  So I have a feeling that Bob and I won’t agree on today’s Supreme Court actions either, although the Court made the right call in both cases.

But I have a feeling that we can agree on this: attorney Jim Bopp’s relentless attacks on federal and state electioneering communication laws will continue.  While Bob Bauer and Jim Bopp keep portraying their efforts to carve out a so-called “grassroots lobbying” exception to the electioneering communication provisions as the efforts of groups across the country just chomping at the bit to run their ads using corporate or union treasury funds, they are nothing of the sort.  The fact is their efforts do not represent the clamor of grassroots groups across the country, but instead represent the constant drum beat of two anti-reform lawyers with BCRA in their craw.

That is why the only efforts to run corporate treasury funded sham issue ads under the banner of “grassroots lobbying ads” have come from three groups associated in some way with attorney Jim Bopp: Wisconsin Right to Life, Christian Civic League of Maine and Alaska Right to Life.  In the CCLM case, for example, court documents reveal that CCLM had no plans of its own to run ads until it was recruited by Mr. Bopp (via Mr. Bopp’s client Focus on the Family) to be the plaintiff in a test case challenging the BCRA electioneering communications provisions.  In none of Mr. Bopp’s cases has a single grassroots lobbying group intervened to press their case along side him.  Why is that?  Because these groups likely see this attempt for what it is: not a desire to open the window of free speech, but an effort to chip away at BCRA.

When the Supreme Court in McConnell upheld the electioneering communications provisions in BCRA, they had this to say about corporations like CCLM and Wisconsin Right to Life, who wanted to run ads mentioning the names of federal candidates just before an election:

“Thus, under BCRA, corporations and unions may not use their general treasury funds to finance electioneering communications, but they remain free to organize and administer segregated funds, or PACs, for that purpose.  Because corporations can still fund electioneering communications with PAC money, it is ‘simply wrong’ to view the provision as a ‘complete ban’ on expression rather than a regulation.”

And the Court added:

“[I]n the future, corporations and unions may finance genuine issue ads during [BCRA’s electioneering communication] time frames by simply avoiding any specific reference to federal candidates, or in doubtful cases, by paying for the ad from a segregated fund [i.e., a PAC].”

These passages from McConnell make clear that the Supreme Court majority is the cause of Mr. Bauer’s and Mr. Bopp’s distress.  But the Court has already engaged in the required balancing of the First Amendment burdens against the government’s anti-corruption interests when it upheld BCRA’s electioneering communications provisions.  Obviously, Mr. Bauer’s and Mr. Bopp’s effort now to re-cast genuine issue ads as “grassroots lobbying ads” is really a form of a petition for rehearing the issues decided in McConnell.  That petition should be denied.