7th Circuit upholds Indiana campaign-ad law-C F R Thread, Day 108

A distinguished panel of federal judges struggled mightily with whether to uphold or strike down an Indiana law that requires a disclaimer for political ads that expressly advocate for or against candidates. They upheld the law, but the difficulty for such judicial luminaries as Richard Posner, Frank Easterbrook and William Bauer of the 7th U.S. Circuit Court of Appeals earlier this month was complicated by two major U.S. Supreme Court decisions that are not easily reconciled.

The Indiana law requires political ads to contain “a disclaimer that appears and is presented in a clear and conspicuous manner to give the reader or observer adequate notice of the identity of persons who paid for … the communication.” The law is designed to inform the electorate about who is funding the ads that support or attack candidates.

The issue gave the panel in Majors v. Abell the difficult task of reconciling two seemingly conflicting U.S. Supreme Court opinions — McConnell v. Federal Election Commission and McIntyre v. Ohio Elections Commission.

The 2003 McConnell decision, which upheld the vast majority of the Bipartisan Campaign Finance Reform Act of 2002 (BCRA), ruled constitutional a provision of the BCRA that required the disclosure to the Federal Election Commission (FEC) of individuals who spend $10,000 for advertising in federal campaigns or who donate $1,000 or more to another person or group engaging in “electioneering communications.” However, in the 1996 McIntyre opinion, the high court struck down an Ohio law that prohibited the distribution of anonymous campaign literature in a case involving a local issue referendum, not a political campaign.

On the one hand, McIntyre holds that the government cannot prohibit the disclosure of all anonymous campaign literature. On the other hand, McConnell signified that at least in the area of campaign ads, individuals could be required to disclose their identity to the FEC (which in turn could release that information to the public upon request). To put it more simply, McIntyre struck down a disclosure law on First Amendment grounds, while McConnell upheld one.

The problem facing the 7th Circuit panel was in applying the McConnell precedent in the face of McIntyre. Unfortunately, the U.S. Supreme Court barely mentioned McIntyre in its McConnell opinion.

Judge Richard Posner — quite possibly the most prolific federal appeals court judge in terms of writing judicial opinions, books and other scholarly materials — wrote the majority opinion upholding the Indiana law. “Reluctant, without clearer guidance from the Supreme Court, to interfere with state experimentation in the baffling and conflicted field of campaign finance law without guidance from authoritative precedent, we hold that the Indiana statute is constitutional,” he concluded in his March 15 opinion.

Judge Frank Easterbrook took the unusual step of writing a “dubitante” (expressing doubt) opinion. He opined that the Supreme Court’s “failure to discuss McIntyre [in the McConnell decision] … makes it impossible for courts at our level to make an informed decision — for the Supreme Court has not told us what principle to apply.”

Loyola of Los Angeles law professor Richard Hasen, who runs an election-law blog, wrote about these issues in a 2004 article for the Election Law Journal, “The Surprisingly Easy Case for Disclosure of Contributions and Expenditures Funding Sham Issue Advocacy.” Hasen wrote that “McConnell sheds little light” on the vitality of McIntyre. He concluded that “many other surprisingly complex disclosure questions remain to be solved by the lower courts.”

In an interview, Hasen said he understood the 7th Circuit’s hesitancy to rule on the issue in light of the McConnell decision's failure to explain McIntyre. “I am a big believer in disclosure,” Hasen said. “I think that McIntyre at times has been interpreted in an overly broad way. The problem is that the Court did not explain the vitality of McIntyre in its latest decision.”

The case is not over. The attorney for the plaintiffs, Robbin Stewart, said in an interview that he would file a motion for reconsideration by the panel. “This decision extends McConnell,” he said. “It goes significantly past McConnell into a new area; it holds that McConnell overturns or narrows McIntyre.”

Attorney Jay Ziemer, who helped defend the Indiana law, said, “I think the panel reached the right result and I am in agreement with the panel that we don’t have the best guidance from the Supreme Court as to how to deal with these issues at this point.”

It likely will take another Supreme Court decision to settle the fate of anonymous campaign expression. “It is a meritorious case that should be sent forward to the Supreme Court,” Stewart said.

First Amendment Restoration Act
Bill # H.R.3801

Original Sponsor:
Roscoe Bartlett (R-MD 6th)

Cosponsor Total: 49
(last sponsor added 03/24/2004)
2 Democrats
47 Republicans

About This Legislation:
Washington, D.C. is often referred to as "Inside the Beltway" or "Belly of the Beast." A more appropriate reference, however, is "The Twilight Zone."

In 1961, there was an episode of "The Twilight Zone" titled "The Obsolete Man." In that episode, the government finds a librarian to be obsolete and sentences him to liquidation.

Has that eerie bit of 1961 fiction become a chilling reality today?
Congress, the president, and the Supreme Court have, with the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold), found political speech by average American citizens to be...obsolete. What will government mandate next...liquidation?

On February 11, 2004, Congressman Roscoe Bartlett, along with several other members of The Liberty Caucus, introduced the "First Amendment Restoration Act" (H.R. 3801). This legislation would restore Americans' First Amendment rights by repealing sections of the McCain-Feingold law that forbid issue-advocacy groups, such as The Liberty Committee, Gun Owners of America, American Conservative Union, Concerned Women of America and the National Rifle Association, to inform their members about important issues and votes relative to incumbent candidates during the 30 and 60 days before primary and general elections.

So during that 30-60 day period when the U.S. Congress takes a vote on abortion, immigration, gun control, United Nations, taxes, treaties, etc., we won't be able to tell you about it without committing a federal crime and risking jail time! Even a simple E-mail alert will violate the law!

McCain-Feingold, passed by Congress, signed by President Bush, and affirmed by the Supreme Court, muzzles the average American who doesn't have a high-priced lobbyist to represent his views in our nation's capital. Under the guise of "cleaning up our political process," incumbent politicians increase their job security by making it illegal for average Americans to participate.

The Liberty Committee strongly supports H.R. 3801 and encourages you to speak in favor of this critical legislation -- while you still can. Don't let the political elite make you "The Obsolete Man."
http://capwiz.com/liberty/issues/bills/?bill=5269186

Special to FreeRepublic | 17 December 2003 | John Armor (Congressman Billybob)

This is nothing like the usual whine by someone whose post was pulled. JimRob pulled my previous thread for a good reason. "If direct fund-raising were permitted on FR, it would soon be wall-to-wall fund-raising."

So, let's start again correctly. This is about civil disobedience to support the First Amendment and challenge the TERRIBLE CFR decision of the Supreme Court to uphold a terrible law passed by Congress and signed by President Bush.

All who are interested in an in-your-face challenge to the 30- and 60-day ad ban in the Campaign Finance "Reform" Act, please join in. The pattern is this: I'm looking for at least 1,000 people to help the effort. I will run the ad, and risk fines or jail time to make it work -- AND get national support.

But there should be NO mentions of money in this thread, and not in Freepmail either. This is JimRob's electronic home, and we should all abide his concerns.

Put your comments here. Click on the link above, and send me your e-mail addresses. I will get back to you by regular e-mail with the practical details.

This CAN be done. This SHOULD be done. But it MUST be done in accord with JimRob's guidelines.

Fair enough?
http://www.freerepublic.com/focus/f-news/1042394/posts

Update
I've already tested the idea of my in-your-face challenge ads, first in the print media and then deliberately illegal on TV, with certain editors I have a long relationship with. I could trust these two gentlemen, one in the print media and the other in the broadcast media, with a "heads up" on what I am planning. Both said they wanted to know, in advance, when I am about to do this.

The bottom line is clear. If I am willing to put my neck on the line, with the possibilities of a fine and jail time, THAT effort will put CFR back on the front page in all media. And that is part of the point. There's not much value of going in-your-face against the enemies of the First Amendment unless the press takes up the story and spreads the word. It is now clear they will do exactly that.

Update 2
QUICK PROGRESS REPORT, ANSWERING A SUPPORTER'S QUESTION:
We have about 15% of the needed 1,000 sign-ups.

Spread the word, direct folks to the front page link on my website.

Google-bomb the phrase "anti-CFR" directing readers to that page and link. (We're already #2 and #4 on Google.)

Target date is now August, since the NC primary looks to be put back to September. (Remember, the ad isn't illegal until the 29th day before the election.)

Cordially,

John / Billybob

Note if you are interested in more on this please contact Valin or Congressman Billybob

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